P. v. Gore

Filed 10/15/07 P. v. Gore CA3

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

Two armed men wearing black ski masks went into a residence and terrorized the occupants, tying them up, robbing them, and raping the woman. An information charged defendant Joseph Kelly Gore with home burglary, home invasion robbery, forcible rape, forcible digital penetration, and vehicle theft. (Pen. Code,  459, 211/212.5, subd. (a), 261, subd. (a)(2), & 289, subd. (a)(1); Veh. Code, 10851, subd. (a).) A jury found defendant guilty of all counts. Sentenced to a determinate term of 40 years and an indeterminate term of 283 years to life, defendant appeals, contending the trial court erred in refusing to allow him to cross-examine a witness about promises made in exchange for testimony; a witnesss statement about defendants prior prison term violated defendants right to a fair trial; there was instructional error concerning accomplice testimony; and the court committed sentencing error. In an earlier opinion we affirmed the judgment.

On February 20, 2007, the United States Supreme Court, having granted a petition for writ of certiorari, vacated the judgment of this court and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We directed the parties to submit supplemental letter briefs, discussing Cunningham issues only. Having further considered the case in light of Cunningham, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The events in question took place around midnight on November 24, 2001, when two masked, armed men entered a residence and terrorized the occupants. Subsequently, police arrested defendant and his nephew, Michael Coe, for the crimes. Defendant was charged with burglary, robbery, rape, digital penetration, and vehicle theft.

Codefendant Coe was charged with identical counts. On November 7, 2003, the court sentenced Coe to 18 years eight months, the maximum negotiated term. Coe pled guilty to three counts of home invasion robbery with firearm use.

Defendants first trial in July 2003 resulted in a mistrial. A third amended information filed in October 2003 charged defendant with one count of home burglary (Pen. Code,  459); four counts of home invasion robbery (Pen. Code, 211, 212.5, subd. (a)); three counts of forcible rape (Pen. Code,  261, subd. (a)(2)); two counts of forcible digital penetration (Pen. Code, 289, subd (a)(1)); and vehicle theft (Veh. Code,  10851, subd. (a)).^[1]

The information further alleged defendant personally used a handgun. ( 12022.5, subd. (a)(1), 667.61, subd (e)(4).) During the commission of the sexual assaults, the information alleged, defendant tied and bound the victim. ( 667.61, subd. (e)(6).)

Defendant entered a plea of not guilty. A jury trial followed in October 2003.

Melissa R., one of the victims, testified about the events surrounding the crimes. Shortly after midnight, Melissa and her boyfriend, Josh J., returned to the home of their friend, Brandon C. As they entered the living room, a masked man approached them, pointing a gun. The gunman had a light complexion, blue eyes, and facial stubble. He held the gun in his left hand, which sported large silver rings.

The gunman yelled for his accomplice, who came out from another room with Brandon. The accomplice, also armed, was smaller, shorter, and skinnier than the gunman. He was as short as five feet seven inches and weighed around 140 pounds. The accomplice was apologetic and nicer than the gunman. Melissa was able to distinguish between their two voices.

The gunman directed his accomplice to escort Josh, Melissa, Brandon, and James H., another occupant of the residence, into the bedroom with their hands in the air. The gunman and his accomplice ordered the four onto the floor, swearing at and shoving the men. They tied, blindfolded, and gagged the men. The duo ordered the victims to empty their pockets and surrender any valuables. They tied Melissas hands in front of her body. The two intruders took Jamess and Joshs wallets, and searched for Brandons coin collection, shotgun, and drugs. They yelled and threatened to kill Brandon and Josh.

One of the men took Melissa into the living room, laying her on her back and placing a pillowcase over her face. As he pressed the gun to her head, the man ordered Melissa to undress. Melissa complied. He digitally penetrated Melissa several times, ordered her to dress, and left.

Over the next half hour, Melissa was raped and digitally penetrated several times. It hurt and she wanted her attacker to stop, so Melissa told him she had a sexually transmitted disease. He stopped and left. Later, the accomplice apologized and offered her a cigarette.

The gunman found Melissas ATM card and demanded her personal identification number (PIN). The accomplice loosened Melissas bonds. After Melissa gave a PIN to them, the duo carried items including a coin collection, speakers, a coat-of-arms shield, mirrors, and an Excalibur sword out of the house. The men took Brandons car.

When they released themselves, the victims found the phone lines cut. Brandons mother called the police.

James, Joshua, and Brandon also testified. Their testimony corroborated Melissas version of events.

Defendants nephew, Michael Coe, testified. Prior to the robbery, Coe, Rusty Padgett, and defendant were at defendants residence on Hammonton-Smartville Road. Defendant talked about taking marijuana from Brandon.

Defendant and Coe went to Brandons house, where defendant gave Coe a gun and a mask. Defendant was also armed. Coe climbed through a window and unlocked the back door. Coe tied up the male victims; defendant searched them. Defendant moved Melissa to the living room; she, too, was eventually tied up. Coe began loading property from the house into their car. Coe denied sexually assaulting Melissa.

As Coe finished loading the property, Padgett arrived. Coe drove to defendants house with the stolen items. When Coe returned approximately 45 minutes later, Padgett was gone. Coe loaded more items in the car. When it was full, defendant told Coe to begin loading things into Brandons car. Coe drove their car; defendant drove Brandons car.

After police contacted Coe, he informed defendant. Defendant said they needed to get to a safe house. The pair dyed their hair black and fled to Nevada.

Padgett testified that defendant expressed a desire to get marijuana at Brandons house. A few days later, Padgett saw some of Brandons possessions at defendants residence. Defendant told Padgett there was no marijuana at Brandons house. When Padgett asked defendant if he had robbed Brandon, defendant admitted he had. Padgett reported defendant to the police and turned over Brandons mirrors as evidence.

Teresa Oliver, defendants girlfriend, testified she was sick at defendants home on November 23, 2001. That night, defendant and Coe checked on her periodically. In the past, Oliver had seen defendant with a gun. Oliver reported defendants activities to the police. However, at trial Oliver testified she could not remember the details.

Detective Randall Elliott testified Oliver told him defendant carried a gun. The night of the robbery, defendant told Oliver he and Coe were going out to do something. A few days later, defendant and Coe were sorting through a variety of items, later hanging some on the wall.

A few days after the robbery, officers recovered some of the stolen items at defendants residence.

The parties stipulated that a police officer recognized defendant in a Nevada truck stop. When officers identified themselves, defendant fled. When arrested, defendant sported dyed black hair.

Sandra Denton, defendants mother, testified in his defense. During the period in question, defendant had no moustache, did not smoke, and was right-handed. Defendant had a large tattoo of a bird on his mid-thigh.

Denton lived across the street from Brandon. Brandon and Padgett were housemates and Coe a frequent visitor. Prior to the robbery, Padgett moved in with Denton. Denton also owned defendants residence.

According to Denton, Padgett never left the house on the night of the robbery. Padgett was asleep in his bedroom, and Dentons dog would have barked if he had left the house.

Officer John Osbourn testified he interviewed Melissa the day after the incident. In his report, Osbourn designated the larger suspect as suspect 1 and the smaller suspect as suspect 2. Melissa stated suspect 2 sexually assaulted her and offered her a cigarette.

Officer Kevin Conde interviewed James, Brandon, and Melissa. They all told Conde one of the suspects referred to the other as Dave or David. Melissa and James said suspect 2 was the smaller. Melissa also stated suspect 2 sexually assaulted her.

John Keovilayphone testified he overheard Coe talking to fellow inmates at the juvenile detention facility. Coe said he took 19 years to put his uncle away for life. Coe also said he had to testify against his uncle. As Keovilayphone watched from a distance, Coe directed Sonny Woods to write a letter.

In rebuttal, Sonny Woods testified Coe never discussed the upcoming trial. Keovilayphone threatened Woods and ordered him to write a letter. In fear, Woods wrote the letter. The letter began, Dear Uncle Joe and was signed Michael Coe.^[2]

The jury found defendant guilty of all counts and found the special allegations true. In a bifurcated trial, the court found true all the alleged prior convictions.

The trial court sentenced defendant to a determinate term of 40 years and an indeterminate term of 283 years to life: a determinate term of 10 years each for the enhancements on the home invasion counts, consecutive to the indeterminate term of 25 years to life on each of the home invasion counts, 75 years to life on one forcible rape count, and 27 years to life on each of the remaining counts. Defendant filed a timely notice of appeal.

I. Cross-Examination of Oliver

Defendant argues the trial court violated his constitutional right to confrontation when it refused to allow him to cross-examine Oliver about promises made in exchange for her testimony. Defendant contends Olivers testimony was critical to the Peoples case, since Oliver provided the only nonaccomplice testimony linking Coe and defendant the night of the robbery.

Evidence Code section 780 states that in evaluating a witnesss credibility, the court or jury may consider any matter having a tendency to prove or disprove the truthfulness of the witnesss testimony at the hearing. This includes the existence or nonexistence of a bias, interest, or other motive. The trial court has discretion to permit or exclude such evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 748.)

Defendant argues Olivers cross-examination suggested police pressured Oliver, who was on probation at the time of the incident, into testifying that defendant and Coe were together the night of the robbery. The cross-examination revealed officers arrested Oliver following a search of her residence, which revealed loot from the robbery. The officers threatened to charge Oliver as an accessory and kept her overnight in jail. Oliver testified she received only a six-month sentence for possession of stolen property.

According to defendant, the looming question was whether Olivers six-month sentence was in exchange for favorable testimony against [defendant] in the robbery/rape case. Defense counsel sought to pursue this important area, asking Oliver whether her six-month jail term for possession of stolen property was in exchange for cooperating with police and giving testimony in this case. [Citation.] The prosecutor objected. [Citation.] The trial court sustained the objection, precluding counsel from cross-examining in this area.

However, our review of the record reveals a slightly different exchange:

[Defense counsel]: How long did you stay in jail?

[Oliver]: I ended up getting a six-month violation for possession of stolen property because they said something that was stolen was found inside the mobile home, which I admitted was my house, I was moving into it. According to [defendants mother] --

[Prosecutor]: Im going to interpose an objection.

[Oliver]: -- it wasnt even my house yet.

The Court: Sustained.

[Defense Counsel]: So as a result of - as a result of your cooperation with the police you got a six-month violation; is that correct?

[Oliver]: No. Actually I was --

[Prosecutor]: Okay. Objection. Beyond that.

The Court: Sustained.

[Defense Counsel]: I have nothing further.

The Court: Redirect? (Italics added.)

In response to the question, As a result of your cooperation with the police you got a six-month violation; is that correct, Oliver answered No. The prosecutor objected, but only after Oliver, on the record, denied receiving any preferential treatment in exchange for her testimony.

Defendant views the record differently. He argues the trial court sustained the prosecutors objection to the initial question posed. The jury, which received the standard instruction to disregard all testimony to which an objection had been sustained, would have disregarded Olivers answer. Defense counsel, having been instructed that the question was improper, properly chose not to inquire further.

This interpretation of the record is not supported by the actions of court and counsel. The objection was not made until after the question, which called for a yes or no answer, was answered in the negative. Having provided an answer, Oliver began to speak further, at which point the prosecutor objected. The objection was sustained. There is no indication that the objection was to the question or answer that preceded it. The prosecutor did not ask the court to strike Olivers earlier answer. The court gave no indication that further questions on the topic would be impermissible. However, in light of Olivers negative response, defense counsels decision to drop the issue was unremarkable. There is no error.

II. Cross-Examination of Coe

Defendant also objects to Coes cross-examination, arguing that Coe stated defendant had been in prison. According to defendant, Coes failure to heed the prosecutions warning not to mention defendants criminal history merits reversal.

During cross-examination, the following colloquy took place:

[Defense Counsel]: And in your lifetime have you had much exposure to [defendant], been around him very much?

[Coe]: Ive run into him a couple times in prison and --

[Defense Counsel]: Objection, Your Honor. Move to strike.

The Court: Motion to strike is granted. The jury is instructed to disregard the response.

Defendant approached the bench and moved for a mistrial. The court took the matter under submission and solicited briefs from both parties.

The court considered the motion and observed: The thing is that my initial reaction to the statement, Ive run into him a couple of times in prison, does not necessarily mean that the Defendant has a prior criminal record. It is unclear . . . where Mr. Coe ran into him, and he did not directly state that Defendant was serving time in prison. And so it could have been, arguably, that his uncle visited him in prison or that his uncle was employed by the prison. [] . . . [] So after weighing all the evidence and the law, I am determining that the prejudice, if any, is cured by the Courts admonition to the jury that the Court immediately gave. And if the Defense so chooses, I will also entertain a jury instruction similar to that suggested in People versus Winters[(1966) 242 Cal.App.2d 711, 717 (Winters)] and, therefore, the motion for mistrial is denied.

Defendant argues Coes statement about seeing defendant in prison denied him due process. A witnesss blurting out of inadmissible evidence does not require reversal unless we conclude the trial court abused its discretion in concluding the statement was not incurably prejudicial. (People v. Bradford (1997) 15 Cal.4th 1229, 1336.)

We review the denial of a motion for a mistrial under the abuse of discretion standard. The trial court should grant a mistrial when it becomes aware of prejudice incurable by admonition or instruction. Whether a particular incident is incurably prejudicial requires a subjective analysis; therefore, the trial court retains considerable discretion in ruling on motions for a mistrial. (People v. Cox (2003) 30 Cal.4th 916, 953.)

Here, the court immediately admonished the jury to disregard Coes remark concerning defendants presence in prison. In addition, the court also instructed the jury as per the parties agreement: Do not consider for any purpose any offer of evidence that was rejected or any evidence that was stricken by the Court. Treat it as though you had never heard of it. [] The Defendants guilt or innocence is to be determined solely from the evidence as to what was done or not done upon this particular occasion and any other matters that were stricken by the Court, or the jury was admonished to disregard and not to be considered are to be excluded from your consideration.

We find Coes blurted remark curable by admonition and instruction. In People v. Wharton (1991) 53 Cal.3d 522, a witness inadvertently informed the jury the defendant had got the word out that the witness was a snitch. (Id. at p. 564.) The Supreme Court found no incurable prejudice since the witness did not directly implicate the defendant in the beating, the trial court gave a pointed admonishment four days later, and on cross-examination the witness clarified that the defendant had not participated in the beating. (Id. at p. 566.)

In Winters, supra, 242 Cal.App.2d 711, the father of the victim volunteered during cross-examination that the defendant told him he had been in prison before. (Id. at p. 717.) The court found no error. Although the record was devoid of the given jury instructions, the court assumed the defendant proposed adequate instructions to disregard the testimony and that those instructions had been given. (Ibid.) In addition, the court found no prejudice since the defendant testified he had previously been found guilty of rape and murder. (Id. at pp. 717-718.)

Here, Coe abruptly stated he had seen defendant in prison. Coe did not elaborate on the circumstances, nor did he state defendant was, in fact, a fellow prisoner. As the trial court noted, Coes remark does not necessarily mean that the Defendant has a prior criminal record. In addition, the court immediately instructed the jury to disregard the remark. We cannot find Coes comment incurably prejudicial; the comment was both vague and brief and followed by an instruction to the jury to disregard it. The trial court did not abuse its discretion in denying defendants motion for mistrial.

III. Accomplice Corroboration Instruction

Defendant claims the trial court erred in instructing the jury on the necessity of accomplice testimony corroboration. Defendant acknowledges that under the instructions given, the jury was not precluded from considering corroborative evidence that would have connected defendant to elements of the crime. However, defendant contends: The vice in the courts instruction was not that it precluded the jurors from relying on the proper type of corroborating evidence, but that it did not require them to rely on such evidence.

In requiring that accomplice testimony must be corroborated, the court instructed: You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the Defendant with the commission of the offense. (CALJIC Nos. 3.11, 3.12.) The court further instructed that accomplice testimony must be viewed with care and caution.

The People argue defendants claim of error fails in the face of People v. Jenkins (1973) 34 Cal.App.3d 893 (Jenkins), in which the court approved the standard accomplice testimony instruction, CALJIC No. 3.12, given in this case. In Jenkins, the defendant requested the following modification to CALJIC No. 3.12: Such corroborative evidence must relate to some act or fact which is an element of the offense charged. (Jenkins, supra, 34 Cal.App.3dat p. 899.)

The court in Jenkins found the failure to modify the instruction was not error. The court reasoned: [T]he test to be applied is not whether the proposed instruction was correct, but whether the jury was fully and fairly instructed on the applicable law. There is no requirement that the jury be instructed in the precise language requested by a party. [Citation.] Appellants argue that the instruction given by the court would allow corroboration to be of irrelevant parts of the accomplice testimony. We have read the instruction and do not find it subject to that infirmity and find no error. (Jenkins, supra, 34 Cal.App.3d at p. 899.)

Here, defendant did not request any modification of the standard instruction. If defendant believed that a modification of CALJIC No. [3.12] was required, he was obligated to request it. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.)

In the present case, Coes testimony that he and defendant entered Brandons house armed and wearing ski masks constituted the accomplice testimony implicating defendant. Both the victims and defendants girlfriend, Oliver, provided corroborating testimony. The victims testified the two intruders wore ski masks and carried guns. The victims were able to distinguish between the two intruders by their size, voices, and demeanor. The larger intruder acted as the leader, ordering the smaller intruder around. Oliver testified defendant and Coe were together the night of the robbery. She told police that defendant said the duo were going out to do something, and defendant carried a gun. In addition, an officer testified that defendant and Coe were arrested in Nevada sporting dyed hair.

Given the corroborating evidence before the jury, the trial court did not err in failing to sua sponte modify CALJIC No. 3.12.

IV. Sentencing Error

Defendant presents two challenges to the trial courts sentence. He argues the trial court violated his constitutional right to a fair trial by increasing his sentence based on factual findings not resolved by the jury. In addition, he contends the trial court also violated his right to a jury trial by sentencing him to consecutive sentences based on factual findings not resolved by the jury. We are aided in our analysis by the recent Supreme Court decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), and we shall address each contention in turn.

Trial Courts Use of Aggravating Factors

The trial court found several aggravating factors in sentencing defendant to the upper term. With respect to the two rape and two penetration counts, the court found: (1) defendant was armed with or used a weapon; (2) defendant planned the crime and obtained masks and gloves to prevent identification and the leaving of fingerprints; (3) the crime involved acts disclosing a high degree of callousness or viciousness; and (4) defendant threatened the victim, a witness, telling her he had all of the victims identifications and he knew their face[s] and where they lived if they tried to report the crime.

Based on these factors, the court imposed the upper term of nine years for each of the rape and penetration counts. The court tripled each of the upper terms under the three strikes law ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) for a total of 27 years to life for each conviction.

The court, in considering the firearm enhancements for the four robbery counts, found that: (1) one victim was asleep in his home where he had that expectation of privacy and safety; (2) the victims were particularly vulnerable; and (3) the manner in which the crime was carried out indicated planning, sophistication and professionalism. For these reasons the court imposed the upper term of 10 years for each gun enhancement for each of the four robberies.

Prior to sentencing defendant on both the sex crimes and the gun enhancements, the trial court made the following observation: [T]he Court wishes to state that it did have the opportunity to listen to the witnesses during trial. And what was presented was a night of terror for four young adults. And the Court concludes that the Defendant used all the wiles and experiences of a lifetime of crime and did everything within his power to avoid detection and apprehension. In the Courts mind, this stands out as one of the most brutal and sophisticated crimes in the county of Yuba, and it is the Courts intention to impose the maximum term allowed by law on the Defendant. (Italics added.)

Defendant contends the trial court relied entirely on improper factors in imposing the upper terms under Cunningham.^[3] The People argue the trial court relied on at least one appropriate aggravating factor in sentencing defendant to the upper term on both the sex crimes and gun enhancements. We agree with the People that the trial courts imposition of the upper term did not run afoul of Cunningham.

In sentencing defendant to the upper term for the rape and penetration counts, the trial court referred to defendants use of a gun in the commission of the crimes. As the People point out, the jury made three special findings, including the finding that defendant used a firearm. As the Black II court found, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.) Here, the jury found, as the trial court referenced during sentencing, that defendant used a gun in the commission of the rape and penetration counts.

Prior to sentencing defendant, the trial court cited defendants wiles and experiences of a lifetime of crime, a reference to defendants extensive criminal background. The probation report buttresses the courts evaluation of defendants penal past. According to the probation report, defendant had a first degree burglary conviction in 1984, a petty theft conviction in 1986, a second degree burglary conviction in 1988, numerous parole violations, and a felony burglary conviction in 2002 in Nevada. The court referenced defendants criminal past prior to imposing the upper term on both the rape and penetration counts and the gun enhancements. Therefore, under Black II, the imposition of the upper term did not infringe on defendants constitutional rights since the trial court found it justified based upon defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.)

Consecutive Sentences

For two of the counts, penetration in concert and rape in concert, the trial court imposed prison terms consecutively to the principal count, attempted rape. The court imposed consecutive sentences because it found that: (1) the crimes involved separate acts of violence and (2) defendant occupied a position of leadership and dominance over other participants.

The jury also found defendant guilty of four counts of robbery. As to each of those counts, the trial court imposed consecutive 25-years-to-life prison terms because it found: (1) [t]he crimes and their objectives were predominantly independent, (2) each crime involved separate acts of violence, (3) each crime was committed at different times or separate places, and (4) each crime involved different victims.

Defendant contends the trial courts imposition of consecutive sentences violated his right to a jury trial, since the trial court relied on facts not found true by a jury. However, the Supreme Court rejected this argument in People v. Black (2005) 35 Cal.4th 1238 (Black I) and reaffirmed its reasoning in Black II, supra, 41 Cal.4th 799.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND , P.J.

CANTIL-SAKAUYE , J.

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^[1]All further statutory references are to the Penal Code unless otherwise indicated.

^[2]In surrebuttal, Shawn Belloli, Keovilayphones friend, testified he saw Coe dictating a letter to Woods.

^[3] Preliminarily, the People argue defendant forfeited his claim by failing to object in the trial court. The California Supreme Court in Black II, supra, 41 Cal.4th 799 rejected this argument, holding a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial. (Black II, at p. 812.)