THE PEOPLE v. CURRY

Filed 12/31/07

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County, Cheryl Meegan, J. Affirmed.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Titenesha Russell; Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant Terry Buford; Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Curry.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Deputy Attorney General, for Plaintiff and Respondent.

The four defendants, Tashara Boone, Terry Buford, Dwayne Curry and Titenesha Russell beat, robbed and kidnapped Bufords ex-girlfriend L.R. who was seven months pregnant with Bufords child. They were charged with six felonies: count one -- attempted premeditated murder of Baby Doe, a seven-month-old fetus (Pen. Code,  664 & 187)^[1]with the special allegation that Boone, Curry and Russell personally used a deadly and dangerous weapon ( 12022, subd. (b)(1)); count two -- assault with a deadly weapon by means of force likely to cause great bodily injury ( 245, subd. (a)(1)) with the special allegation that Boone, Curry and Russell inflicted the injuries when they knew or should have known that the victim was pregnant and that the injuries terminated the pregnancy ( 12022.9, subd. (a)); count three -- second degree robbery ( 211); count four -- kidnapping to commit robbery or aggravated kidnapping ( 209, subd. (b)(1)); count five -- attempted robbery ( 664 & 211); and count six -- conspiracy to murder a human fetus ( 182, subd. (a)(1) & 187, subd. (a)). Boone pled guilty to counts one, two and three in exchange for a prison term of 14 years. The remaining defendants went to trial.

The jury convicted the threedefendants on all counts, except it found Russell not guilty of robbery and Curry not guilty of conspiracy. It found true all the special allegations except the allegation that Curry acted with premeditation in attempting to murder the fetus.

The court sentenced defendants as follows: Buford, to life in prison for aggravated kidnapping, a consecutive term of 25 years to life for conspiracy to commit murder, and a consecutive upper term of five years for robbery. The court stayed sentences on the remaining counts pursuant to section 654; Curry, to life in prison for aggravated kidnapping plus a determinate term of 11 years and eights months: the upper term of nine years for attempted murder, one year for the weapon use enhancement, one year for robbery and eight months for attempted robbery. The court stayed sentences on the remaining counts pursuant to section 654; Russell, to life in prison for aggravated kidnapping and a consecutive term of 25 years to life for conspiracy to commit murder. It stayed sentence on the remaining counts pursuant to section 654.

The three defendants appeal, challenging the sufficiency of the evidence, jury instructions and the upper term sentences. We shall affirm the judgment.

FACTUAL BACKGROUND

A. The Prosecutions Case:

L.R. dated Buford before she became pregnant with his child in February 2004. As the pregnancy progressed, Buford told L.R. she should have an abortion. L.R. wanted to have the baby and told Buford that he could just pay child support if he didnt want to be there. Buford acted indifferently and began to deny that the child was his. When L.R. was about five months pregnant, L.R. and Buford broke off their relationship.

At some time in the weeks leading up to the assault, L.R. called Bufords cell phone. A woman answered and identified herself as Bufords sister. The same woman, whose voice L.R. identified as Russells, called L.R. to ask about the baby and the identity of the father. She continued to make harassing phone calls to L.R., calling her a bitch and threatening to kill L.R. and her baby.

Before the assault, L.R. told Buford that she had $700 and was willing to lend him money to repair his car. She lived with her grandmother and kept the money there.

Boone testified pursuant to her agreement to cooperate with the district attorneys office. She and Buford were best friends. On September 20, 2004, five days before the assault and kidnapping, Buford asked Boone to beat somebody up. She agreed to help him. In subsequent conversations, Boone learned that Buford and L.R. had argued over whether he was the babys father.

Between September 20 and September 25, Buford and Boone devised a plan. Buford would invite L.R. to the movies but take her to a park where Boone would beat her up. The goal was to force L.R. to have a miscarriage. Boone asked Russell to help beat up L.R. and she agreed.

At about 8:00 p.m. on September 25, 2004, Buford picked up L.R. at her home for the ostensible purpose of taking her to the movies. He was driving a white Chevrolet Malibu. Curry, whom L.R. knew through Buford as Pacman, was sitting in the back seat. Buford picked up Russell, who joined Curry in the back seat, then drove to a liquor store. After Buford, Curry and Russell bought liquor, everyone changed seats. Russell drove with Curry beside her. Buford and L.R. were in the back seat. Instead of going to the movies, defendants drove L.R. to a park in Elk Grove.

Buford and Russell informed Boone of their whereabouts by cell phone, while she waited for their arrival at the park. Buford, Curry and Russell drank behind some bushes and L.R. sat by herself. Eventually, L.R. told Buford she wanted to go home and he agreed to drive her back. Buford had his arm around L.R.s waist, but turned sideways as they walked.

When Buford gave the signal, Boone and Russell ran in front of him and L.R., turned, and Boone sprayed L.R. in the face with mace. Boone also hit L.R. in the face. L.R. tried to fight back but was blinded by the mace. Russell joined the fray and punched L.R. in the face. L.R. fell to the ground. L.R. told her attackers that she was pregnant. When L.R asked Buford for help, he responded, [J]ust fight back.

The attack continued while L.R. was on the ground. Curry kicked her in the side. He also threw a garbage can at L.R., hitting her in the head. Boone removed L.R.s tennis shoes and someone took her cell phone. At that point, Boone and Russell left in the Malibu by themselves. They drove north on Interstate 5 toward Meadowview where Russells grandmother lived.

Back at the park, L.R. asked Buford to call an ambulance and he said, Okay. However, instead of calling the ambulance, Buford called Boone and told her to come back and finish the job. Boone asked Buford if he was trying to kill L.R., and Buford said, [N]o, just the baby. He wanted Boone to continue, as long as that baby gets up out of her. While Russell and Boone were driving back to the park, Buford called again to tell them to bring a baseball bat and flashlight from the car.

Boone and Russell approached L.R. at the park carrying a flashlight and baseball bat. Boone struck L.R.s leg with the bat and Russell hit her in the head with the flashlight. The women told L.R. that Buford was not the father of her baby and he was not going to pay child support. L.R. named someone else as the babys father because she wanted the beating to stop.

Boone testified that while Russell and L.R. continued to fight, Curry hit L.R. in the head, knocking her to the ground. Boone also stated that Curry kicked L.R. with both feet as she lay on the ground saying, Help me, my baby. L.R. lost consciousness while she was on the ground.

Boone and Curry began searching L.R.s clothing for money. Boone took $20 that they found inside L.R.s bra. Changing her earlier testimony that she first learned of L.R.s $700 in the car after they allleft the park, Boone stated on cross-examination that Buford brought up the money while she and Curry were going through her clothes. Curry removed L.R.s pants and someone removed her socks. The defendants carried L.R. to the Malibu.

Once inside the car, Buford showed Boone and Russell a picture of the $700 on his cell phone, an image he had received from L.R. Although L.R. was not fully conscious, Buford suggested that they get the money from L.R.s house by having her call her brother and asking him to bring it to the car.

Curry drove to Russells apartment to get clean pants and underwear for L.R. Russells roommate brought the clothes to the car and Boone and Russell put them on L.R. in the back seat of the car. Russell put a BB gun on her lap to scare L.R.

Curry continued to drive. Russell, Boone and Curry bought and smoked marijuana with the $20 they had taken from L.R. When someone looked in the car, Russell stated, See what we do? See how we beat up bitches? They let L.R. out of the car to urinate near a tree, but Boone and Russell stood next to her.

Once L.R. was awake, the defendants turned their attention to the money. Boone and Russell told L.R. that she better find some way to retrieve the $700. Someone handed L.R. a cell phone and ordered her to call home. L.R. telephoned her grandmother and told her to send L.R.s brother outside with her purse.

L.R.s grandmother stepped outside of the house at 1:00 a.m. and saw the Malibu approaching. Curry sped away and L.R. called her grandmother again, telling her to send L.R.s brother to the car with the money. Sensing trouble, L.R.s grandmother asked if she was being held against her will. L.R. said that she was.

Curry pulled up again and L.R.s brother approached the car. When he saw that L.R.s face was bruised and bleeding, he told the occupants of the car to let her out. Instead, Curry drove off with L.R.s brother holding onto the car door. L.R.s grandmother called 911 when L.R.s brother came inside.

L.R. asked to be taken to a hospital, but Curry refused. After discussing alternatives, the defendants left L.R. by the side of the road. Curry drove to Russells apartment where he, Russell and Boone spent the night.

L.R. walked to a nearby apartment where a resident found her and called 911. L.R. had bruises on her face and stomach and was fading in and out of consciousness. An ambulance transported her to the hospital.

Doctors treated L.R. for a fractured eye socket and extensive bleeding inside the eye. She was still experiencing double vision at the time of trial. The doctors drained blood from both of L.R.s swollen ears. They noticed abrasions on L.R.s face, abdomen and buttocks, and bruises all over her body.

Fetal heart monitors indicated that L.R.s unborn baby was in distress and not receiving enough oxygen. L.R. was nearly 32 weeks pregnant at the time of the assault and had not experienced any problems with her pregnancy. Doctors delivered the baby by emergency Cesarean section. The baby had an initial APGAR score of 1 on a scale of 1 to 10. A normal baby has an initial APGAR score of 7 or 8. Doctors placed the baby on a mechanical ventilator for 48 hours and supplied oxygen through its nasal passages for another five days. The baby remained in the hospital for three weeks.

B. Bufords Defense:

Bufords aunt, Crystal Latimore, testified that she met Boone in county jail in the fall of 2005. Boone approached her and began talking about the case. According to Latimore, Buford picked up Boone on his way to the movies because she asked for a ride. The aunt also testified that Boone said that the fight with L.R. was just between the two of them.

C. Currys Defense:

Curry testified that he called Buford on the day of the assault to ask him for a ride to a motel where he was scheduled to baby sit. When Buford arrived, he told Curry that he had to handle some business before driving him to the motel. Buford picked up L.R. in Del Paso Heights, picked up Russell in another part of town, then drove to Elk Grove.

According to Currys testimonyhe did not learn about the plan to beat up L.R. until they met Boone at the park. Curry watched Boone and Russell assault L.R., but did not take part. He also claimed that he did not know that L.R. was pregnant until she fell to the ground and her pea-coat came open.

Curry also testified about what happened when Boone and Russell returned to the park. He confirmed earlier testimony that Boone hit L.R. with the baseball bat and Russell hit her with the flashlight. Curry denied that he kicked or hit L.R., or threw a garbage can at her. Boones sister testified later at trial that Buford, not Curry, kicked L.R. in the stomach while she lay on the ground in the park.

With respect to L.R.s $700, Curry recounted that Russell pointed a gun at L.R. in the car and threatened to shoot her if she did not get the money. Curry said that he did not know what Russell was talking about and had not been privy to any discussions regarding the $700. He denied seeing the cell phone photo of the money. However, on cross-examination, Curry stated that while L.R. was lying on the ground in the park after the beating, he heard Buford tell the group to check her for money.

Curry testified that he drove the car to Russells apartment and L.R.s grandmothers at the direction of Boone and Russell because he was afraid of them. He thought Russells gun was real.

In response to a question from Russells trial counsel, Curry testified that he was drunk at the park after consuming one and a half bottles of Mad Dog. On cross-examination, Curry stated that he knew what was happening and was able to drive the car. He acknowledged that he told the district attorneys investigator that he was a little screwed up from the alcohol, but not too bad.

D. Russells Defense:

Russell testified that she spoke to L.R. one time before the assault. She was on the speaker phone during a conversation between Boone and L.R. Boone and L.R. were arguing over Buford and L.R. challenged Boone to a fight.

On the night of the assault, Russell drove the Malibu with Buford, Curry and L.R. in the car. She stopped at a liquor store and bought three bottles of Mad Dog 20/20. Buford bought a Sprite. Russell and Boone shared one bottle; Curry drank the second bottle; and all three of them shared the third bottle. Russell testified that she took Ecstacy that night. She also felt out of character because she does not drink.

Russell testified that she did not know that Boone was going to fight L.R. until they arrived at the park and Boone said, Im gonna fuck this bitch up. Russell offered to assist if she needed help. She admitted socking L.R. in the face after L.R. bumped into her in what she described as a cat fight. Like Curry, Russell claimed that she did not realize L.R. was pregnant until L.R. fell to the ground. She testified that L.R. wore a pea coat that concealed her stomach.

Russell recounted that Buford had called Boone after they left the park the first time and told them to return to finish the job. According to Russell, it was the first time she realized that Buford wanted to force L.R. to have a miscarriage. Russell testified that at that point, she still felt the effects of the alcohol and Ecstacy, but [n]ot . . . to the point where [she] didnt know what [she] was doing.

Russell testified that she retrieved the baseball bat and flashlight from the back seat of the Malibu, but denied hitting L.R. with the flashlight. Russell and Boone put L.R. in the back seat of the Malibu while she was unconscious.

After everyone was in the car, Buford said L.R. had money and showed them the photo on his cell phone. Russell told L.R. that she wanted the money and L.R. agreed to get it. Russell assumed she agreed because she did not want to suffer another beating. Russell acknowledged that there was a BB gun in the car, but claimed she never threatened L.R. with it. Russell stated that the sole purpose of placing L.R. in the car was to take her home and that she never intended to force L.R. to stay in the car to rob her. According to Russell, no one told Curry where to take L.R. after they drove away from L.R.s house the second time. Later that night, Curry bragged that he rendered L.R. unconscious and complained that he got her blood on his shoes.

DISCUSSION

I.

There Was Sufficient Evidence of Defendants Intent to Rob

Defendants argue that there is insufficient evidence to prove them guilty of aggravated kidnapping in count four. They maintain there is no evidence to show that they acted with the specific intent to rob L.R. at the time they moved her from the park to the car. The record does not support defendants argument.

When a defendant challenges the sufficiency of the evidence, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573, . . .], italics in original.) [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal. 3d 557, 578 . . . .) (People v. Davis (1995) 10 Cal.4th 463, 509 (Davis).) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.] (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) Indeed, we presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (Davis, supra, at p. 509.)

A person is guilty of kidnapping under California law if he or she forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county . . . . ( 207, subd. (a).) The Legislature dictates greater punishment for aggravated kidnapping under section 209, subdivision (b)(1) where the accused kidnaps or carries away any individual to commit robbery . . . . Section 209 also requires asportation or movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. [Citations.] (People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford); see  209, subd. (b)(2).)

The parties agree that for them to be found guilty of aggravated kidnapping, the evidence must show that they intended to commit the robbery at the time they held or detained L.R. A person [cannot] kidnap and carry away his victim to commit robbery if the intent to rob [is] not formed until after the kidnap[p]ing ha[s] occurred. (People v. Tribble (1971) 4 Cal.3d 826, 831.) Thus, the crime of aggravated kidnapping is similar to burglary where it is necessary to show that the entry was with the intent to commit larceny or any felony. An illegal entry but without such an intent is not a burglary [citation]; similarly . . . , kidnapping without intent to rob constitutes kidnapping but not kidnapping for purpose of robbery; and a robbery during a kidnapping where the intent was formed after the asportation is a robbery and not a kidnapping for purpose of robbery. [Citations.] (Ibid.) Moreover, the robbery need not be completed. All that is required is that the defendant have the specific intent to commit a robbery at the time the kidnap[p]ing begins. (People v. Davis (2005) 36 Cal.4th 510, 565-566.)

Defendants claim they did not have the specific intent to rob L.R. at the time they put her in the Malibu. They cite evidence to show that they decided to rob L.R. only after they drove away with L.R. and Buford showed them the photo of the $700 on his cell phone. All three maintain that there is no evidence they knew about the money before they placed L.R. in the car. Defendants ignore the inferences to be drawn from other evidence presented at trial.

Russell testified on cross-examination that Buford mentioned the $700 when she and Curry were going through L.R.s clothing at the park. Both Russell and Curry told the district attorneys investigator that they heard Buford tell the others to check for money while L.R. lay on the ground after the second assault. Buford told them that L.R. had money someplace, she had just gotten paid or something. Russell also told the district attorneys investigator that she heard Buford ask L.R. where the money was several times. According to Russells statement to the district attorneys investigator, thereafter, Curry ripped off L.R.s clothes and found the $20. And in the car Buford said to L.R., I thought you had $700. We conclude that the jurors could reasonably infer from this circumstantial evidence that defendants knew about L.R.s $700 before they put her in the car and formed the required specific intent to rob her at that time. (In re Michael D., supra, 100 Cal.App.4th at p. 126.)

Story continues as part II . . . .

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^[1]Hereafter, undesignated statutory references are to the Penal Code.