P. v. Persons
Filed 5/21/13 P. v. Persons CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL LEE PERSONS, Defendant and Appellant. | B237741 (Los Angeles County Super. Ct. No. PA058905) |
APPEAL from
a judgment of the Superior Court
of
County, Harvey Giss, Judge.
Affirmed.
Brett
Harding Duxbury, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
__________
Samuel Lee Persons was convicted by a jury of
sentenced to an aggregate state prison term of 61 years to life. On appeal Persons contends the trial court
misstated the People’s burden of proof in response to an objection during
closing argument and improperly instructed the jury on aiding and abetting and
torture. He also contends the prosecutor
misstated the law of provocation in closing argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Information
Persons was charged in an
amended information with murder (Pen. Code, § 187, subd. (a))
suffered a prior serious felony conviction within the meaning of the “Three
Strikes†law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section
667, subdivision (a), and had served six separate prison terms for felony
convictions (§ 667.5, subd. (b)).
Persons pleaded not guilty and denied the special allegations.
2. The
Evidence at Trial
Beatrice Brothers lived in her
own home with her adult son, Sidney Cole.
Bobby Gates lived in a converted garage in the back of the house along
with his girlfriend, Catherine Hoskins, and Hoskins’s sons, John and
Antwan. Brothers’s daughter, Lachelle
Robinson, lived in a house across the street with her daughter, Mimi.
In the
early morning of December 5, 2005,
after John had told his mother and Brothers that Gates had done something to
him that he “did not like,†Brothers confronted Gates in her living room and
accused him of molesting John and Mimi. After being summoned by Brothers, Persons and
his nephew, Christopher Yancy, arrived at the house; and Brothers and Hoskins
told them Gates had molested the children.
Persons
tied Gates to a chair and placed a rubber ball in his mouth to prevent him from
speaking. When the ball fell out,
Brothers put it back in and secured it by tying a sock around Gates’s
mouth. Brothers, Persons and Yancy
started beating Gates. Brothers hit him
in the head with a broomstick 10 times with such force that the stick broke in
half. Persons hit Gates in the face with
his fist. Robinson interrupted the
attack, telling them to “wait†and reminding them the children were in the
house. Brothers told her they could not
wait, they had to “do this now.†Then,
Brothers, Persons, Hoskins and Yancy took Gates back to the garage.
Robinson
peered in the garage and saw Persons and Yancy taking turns brutally kicking
Gates while he lay on the floor.
Robinson also saw Brothers’s dog, a pit-bull, jumping on Gates and
biting him.
Persons
told police that, during the attack in the garage, Brothers and Hoskins
sodomized Gates with a heated rod. Yancy
poured rubbing alcohol on Gates’s stomach, then lit a match and set him on
fire. When Gates started screaming,
Yancy gagged him with something. Persons
said he did not really participate in the beating in the garage. Brothers and Yancy, on the other hand, were
“out of control.†The group did not plan
on killing Gates; they just wanted to teach him a lesson for molesting
children. Gates died during the course
of the attack. Brothers and Yancy dumped
the body near the freeway and set it on fire.
Paul
Gliniecki, a deputy coroner with the Los Angeles County Coroner’s Office,
testified Gates had suffered blunt force trauma to his head, face, neck, torso,
pelvis, arms and legs and had burns all over his body. A gag was found stuffed in his throat. According to Dr. Gliniecki, concentric marks
on Gates’s back were consistent with having been burned by a cigarette or the
end of a heated metal rod while he was still alive. Dr. Gliniecki could not be certain whether
all the burns on Gates’s body were inflicted while he was alive or postmortem,
nor did he see any obvious evidence of forcible sodomy with a foreign
object. Gliniecki opined Gates died
primarily of asphyxiation and listed blunt force trauma as a contributing cause
of death.
3.
The jury was instructed with
CALCRIM Nos. 520 (murder); 521 (degrees of murder); 540A and 540B (first degree
felony murder based on torture or aiding and abetting torture); 400 and 401
(general principles of aiding and abetting); 402 (murder as a natural and
probable consequence of torture); 810 (elements of torture); 570 (voluntary
manslaughter based on killing in the heat of passion); and 522 (provocation
reducing first degree murder to second degree murder or voluntary
manslaughter).
The jury
found Persons guilty of murder and torture and found the murder to be in the
first degree. After Persons waived his
right to a jury trial on the prior conviction and prior prison term enhancement
allegations, the court found each of those special allegations true. Persons was sentenced, as a second-strike
offender, to an aggregate state prison term of 61 years to life.
DISCUSSION
1. The
Trial Court Did Not Misstate the People’s Burden of Proof
In his closing argument
various legal standards of proof to the jury—probable cause, preponderance of
the evidence, clear and convincing evidence and beyond a reasonable
doubt—apparently to underscore the heightened burden imposed by the reasonable
doubt standard. In the course of this
explanation, defense counsel told the jury that something as important as
parental rights can be terminated by clear and convincing evidence but “beyond
a reasonable doubt,†the “highest standard of proof,†is reserved for when we
“judge one of our fellow citizens.†The prosecutor
objected, and the trial court told the jury “the instruction as to reasonable
doubt is exactly as I gave it to you and as it appears in the
instructions.†“So you can read a lot
into what is meant by abiding conviction and so forth. [
instruction that I’ve read you on reasonable doubt is what prevails and not
counsel’s interpretation. â€
Persons
contends the court’s statements suggesting the beyond-a-reasonable-doubt
standard was “flexible†unconstitutionally lowered the standard of proof in
this criminal case. (See
[114 S.Ct. 1239, 127 L.Ed.2d 583] [“Due Process Clause requires the government
to prove a criminal defendant’s guilt beyond a reasonable doubt, and the trial
court must avoid defining reasonable doubt so as to lead the jury to convict on
a lesser showing than due process requiresâ€]; People v. Aranda (2012) 55 Cal.4th 342, 356; People v. Mayo (2006) 140 Cal.App.4th 535, 542.)
Contrary to
Persons’s contention, far from misstating the burden of proof, the court
informed the jury that the only definition it was to rely on concerning
reasonable doubt was the instruction the court had given to them. Persons does not challenge the propriety of
CALCRIM No. 220 nor would such a challenge have merit. (See People
v. Aranda, supra, 55 Cal.4th at p. 353 [court “satisfies†its statutory and
constitutional obligation to instruct on principles of reasonable doubt by
giving CALCRIM No. 220].) Nothing
in the court’s remarks admonishing the jury to consider the instructions given
altered the definition of reasonable doubt in CALCRIM No. 220 or lowered
the People’s burden of proof.
2. The
Court Properly Instructed the Jury on the Intent Required for Torture
“Every person who,
with the intent to cause cruel or extreme pain and suffering for the purpose of
revenge, extortion, persuasion, or for any sadistic purpose, inflicts great
bodily injury as defined in Section 1202.7 upon the person of another, is
guilty of torture. [¶] The crime of torture does not require any
proof that the victim suffered pain.â€
(§ 206.) The court
instructed the jury with CALCRIM No. 810, which closely tracks section 206 and
restates the statutory language.
name="_ftnref5" title="">[5]
Persons,
whose counsel did not object to the instruction or request any amplifying
language, contends CALCRIM No. 810 is ambiguous in that “extreme pain†could
simply mean pain “beyond the ordinary or average†(see Webster’s Encyclopedic
Unabridged Dict. of the English Language (2001) p. 686 [defining
“extremeâ€]) or it can mean something much more limited in scope, that is, “the
utmost [pain] or exceedingly great in degree.â€
(Ibid.; accord, American
Heritage Dict. (2d College ed. 1992) p. 481 [defining extreme as “the
greatest degree of intensity away from the normâ€].) He argues the latter definition must have
been what the voters had in mind when they approved section 206 as part of
Proposition 115.
name="_ftnref6" title="">[6] Because CALCRIM No. 810 permitted the
jury to convict Persons of torture if they found an intent to inflict merely
“immoderate†pain rather than the “utmost or an exceedingly great degree of
pain and suffering,†he argues, his conviction should be reversed.
“The
language of a statute defining a crime or defense is generally an appropriate
and desirable basis for an instruction, and is ordinarily sufficient when the
defendant fails to request amplification.
If the jury would have no difficulty in understanding the statute
without guidance, the court need do no more than instruct in statutory
language.†(People v. Poggi (1988) 45 Cal.3d 306, 327; accord,
104 Cal.App.3d 569, 577; see People
v. Mayfield (1997) 14 Cal.4th 668, 778 [if instruction is adequate, trial
court is under no obligation to amplify or explain in absence of a request that
it do so].) The court’s sua sponte
obligation to add clarifying language arises only when “a statutory term ‘does
not have a plain, unambiguous meaning’ [citation], has a ‘particular and
restricted meaning,’ or has a technical meaning peculiar to the law or an area
of law.†(People v. Roberge (2003) 29 Cal.4th 979, 988.)
In a
similar context, the Supreme Court has held the term “extreme†has a
“commonsense meaning†the jury may be expected to use†in applying
instructions. (See People v. Pearson (2013) 56 Cal.4th 393, 478 [“‘[t]he term[]
“extreme†. . as used in [§] 190.3 [“extreme duress†or
“extreme mental or emotional disturbanceâ€] ha[s] [a] commonsense meaning[] that
the jury may be expected to use in applying the instructions’â€];
287, 338 [same].) In fact, numerous
appellate courts have rejected the argument the language in section 206 is too
vague or ambiguous to be properly understood.
(See, e.g., People v. Aguilar (1997)
58 Cal.App.4th 1196, 1202 [“cruel pain†as used in § 206 is the equivalent
of “extreme†or “severe†pain; accordingly, the phrase “‘cruel or extreme pain
and suffering’ as used in [§] 206, is not unconstitutionally vagueâ€];
140 Cal.App.4th 837, 844 [rejecting contention “that an ordinary person
cannot understand what conduct is prohibited by section 206â€];
45 Cal.App.4th 441, 444 [§ 206 “plainly sets forth its requirements for
tortureâ€]; People v. Barrera (1993)
14 Cal.App.4th 1555, 1572 [“[t]he terms used in [§] 206, and therefore in
CALJIC No. 9.90[
name="_ftnref8" title="">[8]]
are of such common usage that they are presumed to be within the understanding
of reasonable jurorsâ€].) Those courts’
persuasive analyses apply equally as well when the argument, as here, is
shifted from challenging the language of the statute to challenging the jury
instruction incorporating that language.
(See, e.g., Aguilar, at p.
1202 [“[w]e conclude CALJIC No. 9.90 correctly sets forth the elements of
the crime of tortureâ€]; Barrera, at
p. 1572 [holding neither § 206 nor CALJIC No. 9.90 is vague or
ambiguous; CALJIC No. 9.90 correctly states the elements of torture].) Because “intent to cause cruel or extreme
pain and suffering†does not require additional explanation beyond the
commonsense meaning of “extreme†the jury may be expected to apply (see
p. 338), the trial court was under no obligation to sua sponte provide any
amplifying or clarifying language to supplement CALCRIM No. 810.
3. The
Prosecutor’s Explanation of the Law of Provocation in Closing Argument Was Not
Reversible Error
A killing
that would otherwise be murder is reduced to voluntary manslaughter if the
defendant acted because of a sudden quarrel or in the heat of passion. (People
v. Lasko (2000) 23 Cal.4th 101, 110; People
v. Moye (2009) 47 Cal.4th 537, 549.) There are three elements to this
provocation theory: (1) the
defendant was provoked; (2) as a result of the provocation, the defendant acted
rashly and under the influence of intense emotion that obscured his or her
reasoning or judgment; and (3) the provocation would have caused a person of
average disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment. (
19 Cal.4th 142, 163; Moye, at p.
550.)
During closing argument, the
prosecutor properly identified the three elements necessary to reduce a murder
to voluntary manslaughter based on provocation.
The prosecutor then stated, as to the third element, “hearing
allegations of child molestation might cause someone to act rashly, might cause
someone to become very upset. But would
it cause someone to immediately start tying, tying up someone, shove a ball in
their mouth, to start dragging them out?â€
Defense counsel objected. The
court overruled the objection, stating the prosecutor’s interpretation of the
third element was “argument†and defense counsel would be able to counter with
his own argument. The prosecutor then continued,
“Would a reasonable person of average disposition behave in the way [Persons]
behaved that night? I say no way.†Defense counsel did not discuss the
instructions pertaining to adequate provocation during his closing
argument.
Persons now contends the prosecutor
misstated the law when, after acknowledging allegations of child molestation
may provoke a reasonable person to act rashly, he then argued Persons’s actions
in response to what may have been sufficient provocation were unreasonable. (See People
v. Bell (1989) 49 Cal.3d 502, 538 [during closing argument counsel has
“broad discretion in discussing the legal and factual merits of a case,†but
“it is improper to misstate the lawâ€]; People
v. Mendoza (2007) 42 Cal.4th 686, 702 [same].) He contends that, in determining whether a
killer’s reason was obscured by provocation sufficient to negate malice, “the
focus is on the provocation—the surrounding circumstances—and whether it was
sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation
and the reasonableness of the response is not relevant to sudden quarrel or
heat of passion.†(People v. Najera (2006) 138 Cal.App.4th 212, 223; see
provocation during closing argument when he stated the offense would be
voluntary manslaughter only if “a
reasonable person would do what the defendant did†in response to the
particular provocation shown].)
The People argue
with statements in other cases suggesting the provocation must be sufficient
not only to cause the defendant to act rashly, but also to incite the defendant
“to homicidal conduct.†(
accord, People v. Waidla (2000) 22
Cal.4th 690, 740, fn. 17 [concluding there was insufficient evidence that
“Viivi so provoked Waidla as adequately to arouse a reasonable person to make
the kind of sudden and devastating attack that he participated in
makingâ€].)
need not resolve the question whether the prosecutor misstated the law of
provocation
title="">[9] because, even if he did, the error was
harmless. (See People v. Ochoa (1998) 19 Cal.4th 353, 427 [when claim of
misconduct is based on arguments or comments the prosecutor made to the jury,
the question of prejudice is determined by “‘whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion’â€]; People v.
Morales (2001) 25 Cal.4th 34, 47 [same].)
The jury was instructed with CALCRIM
No. 570, which follows Najera’s interpretation
of the requisite provocation: “In
deciding whether the provocation was sufficient, consider whether a person of
average disposition, in the same situation and knowing the same facts, would
have reacted from passion rather than from judgment.â€
informing them they must follow the court’s instructions even if they conflict
with “the attorney’s comments on the law.â€
We presume the jury understood and followed the instructions given. (People
v. Yeoman (2003) 31 Cal.4th 93, 139.)
Furthermore, the jury found Persons
guilty of torture. Accordingly, under
the felony murder rule, a properly instructed jury was required to (and did)
find Persons guilty of murder in the first degree. Provocation is irrelevant to a conviction
based on felony murder. (See
665 [because malice is not an element of felony murder, provocation is
irrelevant to that theory; “under the felony-murder rule, a killing in the
commission of certain felonies specified in [§] 189 is first degree
murder†whether or not defendant acted with malice]; People v. Cavitt (2004) 33 Cal.4th 187, 197 [same]; CALCRIM
No. 522 [“[p]rovocation does not apply to a prosecution under a theory of
felony murderâ€]; § 189 [listing torture as a qualifying offense for first
degree felony murderâ€]; cf. People v.
Visciotti (1992) 2 Cal.4th 1, 57, fn. 25 [“The jury found under
properly given instructions that the murder was intentional, and was committed
in the perpetration of robbery, thus establishing that the killing was murder
of the first degree under the felony-murder rule and [§] 189 without the
necessity of proving malice. Any error
in failing to instruct on voluntary manslaughter was harmless.â€].)
4. Jury
Instructions on Aiding and Abetting a Premeditated Murder Were Not Improper;
Any Error Was Harmless in Any Event
trial court instructed the jury with CALCRIM No. 400 (aiding and
abetting), telling the jury, “A person may be guilty of a crime in two
ways. One, he or she may have directly
committed the crime. I will call that
person the perpetrator. Two, he or she
may have aided and abetted a perpetrator who directly committed the crime. [¶] A
person is guilty of a crime whether he or she committed it personally or aided
and abetted the perpetrator.†CALCRIM
No. 401 explained, “Someone aids and
abets a crime if he or she knows of the perpetrator’s unlawful purpose and
he or she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.†The court also instructed the jury with
CALCRIM Nos. 520 and 521 (requirements of first degree premeditated murder),
telling the jury, “The defendant is guilty of first degree murder if the People
have proved that he acted willfully, deliberately and with premeditation.â€
contends this combination of jury instructions was legally deficient because it
permitted the jury to find him guilty of aiding and abetting a premeditated
murder even if it found he did not personally deliberate. (See People
v. McCoy (2001) 25 Cal.4th 1111, 1118 [when offense charged is murder,
jury should be instructed that the degree of murder is dependent on the
defendant’s own mens rea, not that of his or her coparticipant];
Cal.App.4th 1148, 1164-1165 (Samaniego)
[same]; People v. Nero (2010) 181
Cal.App.4th 504, 518 (Nero).) Although we take issue with the accuracy of
Persons’s characterization of the instructions given,
was plainly harmless even under the stringent beyond-a-reasonable-doubt
standard of Chapman v. California (1967)
386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See People
v. Delgado (2013) 56 Cal.4th 480, 490 [“[w]hen an instruction tells
the jury it may convict the defendant on a theory he or she aided and abetted
in commission of the offense, but omits one or more of that theory’s necessary
findings, the error may be deemed equivalent to omitting an element of a
charged offense,†an error evaluated under the Chapman standard].)
The jury was correctly informed,
under both the natural and probable consequences doctrine and the felony murder
rule, the only specific intent it was required to find to convict Persons of
first degree murder was the intent to commit torture. (See, e.g., People v. Pearson (2012) 53 Cal.4th 306, 321 [natural and probable
consequences rule “extends accomplice liability to the perpetrator’s reasonably
foreseeable crimes regardless of whether the defendant personally harbored the
specific intent required for the commission of the charged, nontarget
offenseâ€]; McCoy, supra, 25 Cal.4th
at p. 1118, fn. 1 [analysis concerning necessity of accomplice sharing
same mens rea of perpetrator in connection with the homicide does not apply to
natural and probable consequences doctrine, which looks to whether accomplice
possesses specific intent to commit target offense]; People v. Cavitt, supra, 33 Cal.4th at p. 197 [the mental state required
for felony murder “is simply the specific intent to commit the underlying
felonyâ€]; see also CALCRIM Nos. 402 [natural and probable consequences]
and 540A and 540B [felony murder].) The
jury necessarily found Persons possessed the specific intent to commit torture
when it convicted him of that crime.
Accordingly, under either the natural and probable cause theory or the
felony murder rule, it properly found him guilty of first degree murder. Any
error in the instructions on the specific intent required to convict for aiding
and abetting a premeditated murder (a separate theory for first degree murder)
is irrelevant to the verdict.
The judgment is affirmed.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
references are to the Penal Code.
Yancy and Persons were tried separately for their respective roles in Gates’s
homicide. We reversed Brothers’s first
degree murder conviction in People v.
Brothers (Dec. 12, 2011, B225376) [nonpub. opn.] based on instructional
error and remanded the case for a new trial.
We affirmed Yancy’s second degree murder conviction in
[nonpub opn.].
