P. v. Stayer

Filed 6/13/08 P. v. Stayer CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

After the death of Christopher McCauliffe, defendants Timothy Thomas Stayer and Robert Lee Stayer^[1]and several codefendants were charged with murder (count 1; Pen. Code,  187, subd. (a)),^[2]conspiracy to commit torture (count 2;  186, subd. (a)(1), 206), torture (count 3; 206), kidnapping (count 4; 207, subd. (a)), and destruction of evidence (count 6; 135). As to count 1, it was alleged as a special circumstance that defendants committed murder while in the commission of kidnapping ( 190.2, subd. (a)(17)(B)). As to count 3, it was alleged as an enhancement that defendants inflicted great bodily injury ( 12022.7). As to counts 1 through 4, Timothy was alleged to have served a prior prison term ( 667.5, subd. (b)).^[3]

A jury convicted defendants on all counts and found the special circumstance and enhancement true. In a bifurcated proceeding, the trial court found that Timothy had served a prior prison term.

The trial court sentenced defendants to life in prison without possibility of parole on counts 1, 2, and 3 (running the term on count 3 consecutive to that on count 1 and staying the term on count 2 ( 654)), plus a concurrent eight-year upper term on count 4. The court ran defendants six-month sentences on count 6 concurrent to the sentences on count 4, and ran Timothys one-year prior prison term enhancement consecutive to the sentence on count 4 and concurrent to that on count 1. The court also imposed restitution fines under section 1202.45 to be suspended unless [defendants] parole[s] [were] revoked.^[4]

Timothy contends: (1) Insufficient evidence proved conspiracy to commit torture, requiring reversal on all counts as to him. (2) The derivative liability instructions must have hopelessly confused the jury. (3) When the prosecutor falsely claimed that Kimberly could not assert the marital privilege (an issue separately raised by Robert as prosecutorial misconduct), trial counsel was ineffective in failing to discover the true state of the law and object to the prosecutors misstatements. (4) The trial courts failure to give a unanimity instruction requires reversal on all counts as to Timothy. (5) The trial court erred prejudicially in failing to instruct sua sponte on conspiracy to commit a battery as a lesser included offense of conspiracy to commit torture. (6) The trial court erred prejudicially in instructing on conspiracy, aiding and abetting, and natural and probable consequences, in that the jury could have convicted Timothy of first degree murder without finding that that offense (as distinguished from implied malice murder) was a natural and probable consequence of the object of any conspiracy. (7) The accomplice testimony on count 6 was insufficiently corroborated. (8) The trial courts failure to instruct on the special circumstance with CALCRIM Nos. 700 and 703 requires reversal of the special-circumstance finding.

Robert contends: (1) The trial courts instruction on murder-by-torture omitted an element of the offense, depriving Robert of his right to a jury finding on that element. (2) Insufficient evidence proved premeditation and deliberation as to count 1. (3) Insufficient evidence proved kidnapping as to count 4 and the special-circumstance allegation. (4) The prosecutor committed misconduct in closing argument as to this count and allegation, and trial counsel was ineffective in failing to object. (5) The prosecutor also committed misconduct by falsely claiming that Kimberlys marriage to Robert was void, and the trial court wrongly took judicial notice of the marriages purported invalidity. (6) Cumulative error requires a new trial on all counts. (7) The trial court erred by sentencing consecutively on count 1 (murder) and count 3 (torture) because the crimes were part of an indivisible course of conduct. (8) The trial court violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] by imposing the upper term on count 4, and by sentencing consecutively on counts 1 and 3, based on facts not found by the jury. (9) The trial court erred by imposing a restitution fine under section 1202.45 because Roberts sentence did not include the possibility of parole.^[5]

We shall remand to strike the restitution fines under section 1202.45. In all other respects, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution evidence^[6]

The crimes

In November 2004, defendants, who are brothers, and Kimberly lived with defendants mother (Tuschen) and her three younger children in Anderson, California.^[7]

On the evening of Saturday, November 20, defendants and friends went to a party. Timothy went with Haley Savage in her Nissan Altima; Robert, Skelton, and Coyne went in Coynes Chevy Silverado pickup.^[8]

Meanwhile, Tuschen and Christopher McCauliffe met at a bar and decided to have sex. She brought him home after midnight on November 21. No one was there.

After leaving the party, Robert, Skelton, and Coyne bought two 12-packs of beer and went to a friends apartment in Redding. Savage drove Timothy home to pick up his cell phone charger.

Savage parked and waited while Timothy, who lacked a key, knocked on the front door, then went to the back.^[9] Through an opening in the blinds, he saw Tuschen having sex with McCauliffe. After she heard Timothy knocking, she let him in.

Timothy, hearing McCauliffes name, realized that he was the boyfriend of Timothys ex-girlfriend, Laura Minkoff. Timothy left her a message on his cell phone. McCauliffe then attacked him.

In the ensuing fistfight, Timothy broke McCauliffes nose, blackened one eye, and spattered blood all over the bedroom. After taking him out of the house, Timothy put him in a chair on the front porch.^[10]

At some time, Timothy called Robert. Timothy told the police that he said, Im locked out of the house . . . and moms having sex with somebody. Robert told the police that Timothy said get down to the house because of a problem. According to Kimberly, Robert later told her that Timothy had urged them to come [t]o beat up Christopher McCauliffe; however, she called this a paraphrase. According to Coyne, after taking the call Robert said, We have to go. Theres trouble[,] then said, Theres some guy at the house. According to Skelton, Robert said that they needed to go to Anderson, but did not explain why.

Robert, Skelton, and Coyne drove quickly to Tuschens house in Coynes pickup, taking their beer. When they arrived, Timothy and Tuschen were standing by the front door; Timothy was yelling at McCauliffe, who sat in a chair on the porch, badly beaten and bloody.

Timothy said to Robert: Hey [b]ro, this guys been fucking mom (or words to that effect).^[11] According to Coyne, Robert threw a beer bottle, hitting McCauliffe in the forehead, and followed up with a punch that knocked him off the chair.^[12] As he lay on the ground unresisting, Robert hit him four or five more times until pushed away and told to chill by Coyne. McCauliffe remained motionless on his side.

Timothy dragged McCauliffe face-down into the garage, then hovered over him cursing. Robert, Skelton, Coyne, and Tuschen also entered the garage. The door shut.

Coyne testified that he did not see any more abuse of McCauliffe in the garage before going into the house, as Skelton and Tuschen also did. Robert came in with Coyne, but must have gone back out. Timothy apparently remained in the garage.

A few minutes later, Robert came back in holding a jug or bottle and said to Coyne: I poured this on him; asked why, he shrugged. According to Kimberly, Robert later said he had poured bug spray on McCauliffes eyes because McCauliffe was trying to use his cell phone.^[13]

Timothy told Coyne to back up his truck to the garage. Timothy and Skelton picked McCauliffe up and walked him to the truck, which he put his hand on to steady himself. Coyne saw some type of liquid on him which smelled so horrible that it was hard to breathe. McCauliffe said, I cant see and [i]t burns.

After McCauliffe sat on the tailgate, Timothy and Skelton put him into the truckbed. Coyne, Robert, and Skelton drove away from the house. No one had said where they were going.

According to Coyne, he stopped and asked Robert where to go; Robert directed him to the boat ramp at Anderson River Park, four or five minutes away, but would not say why.^[14] When they arrived there, it was very cold.

Skelton dragged McCauliffe out of the truck, dropped him onto the parking lot, straddled him, and kicked him twice in the ribs, saying: Dont mess with peoples mothers.^[15] Next, Robert (whom Coyne believed to weigh 240 or 250 pounds) stomped McCauliffe in the head around eight times, jumping up and down while holding a cell phone taken from McCauliffe. Coyne heard McCauliffes head hitting the asphalt. Skelton finally ran over and stopped Robert.

Robert, Skelton, and Coyne then drove back to the house, leaving McCauliffe lying on the asphalt. No one called 911 to get help for him.

Savage, who had driven away, returned to the house in time to see McCauliffe carried out to Coynes truck and the truck pull away. She called Timothy, who came out and sat in the drivers seat as she moved over. He smelled of pesticide, but claimed he did not know why. They drove to the boat ramp, where she saw someone on the ground. Timothy went over to him, came back quickly, and said: Hes fine. Hes breathing. Hes okay. She said they needed to call 911; he replied, I know, I know, but did not call. They returned to the house. In the garage, Savage saw blood and smelled the odor she had noticed on Timothy.

When Robert, Skelton, and Coyne got back to the house, they found Timothy hosing down the porch, while Tuschen was inside shampooing the carpet.^[16] According to Coyne, the garage smelled strongly of pesticide.

When Timothy heard that the others had gone to the boat ramp, he said that he had thought they would go to a big tree in the park called the Senior Tree.

According to Coyne, after 20 minutes at the house, he and Robert drove in the truck, which smelled of pesticide, to a house where Robert did a drug deal, then to a car wash. They were met by Timothy, Skelton, Savage, Kimberly, and Kimberlys sister, who came in Savages car, driven by Timothy. The group tried to purge the vehicles of evidence as some of them discussed and acted out what was done to McCauliffe, unaware that the car washs video recorders were taping it all.

Timothy and Savage drove to her home. Robert, Kimberly, and Coyne dropped off Skelton, then checked in at a Motel 6 around 3:30 a.m.; claiming to lack identification, Robert gave Coyne money to rent the room. Once inside, Robert cleaned blood from his lower leg.

After a cell phone discussion with Timothy, Coyne drove to Savages home. Timothy said that he had gone to the boat ramp, seen McCauliffe, and heard him wheezing. Alarmed, Coyne decided to check on it; Savage let him take her car.

At the boat ramp, Coyne found McCauliffe lying motionless and unresponsive. Coyne called Timothy, who told him to put McCauliffe in the back seat of Savages car. Timothy and Savage then drove there in Coynes truck.

Timothy went over to McCauliffe, shook him, and announced: Dude is dead as fuck. He told Coyne again to put the body in Savages back seat and take it away. According to Coyne, he said: No, we have to call the cops, but Timothy answered: No, we cant do that. According to Savage, Timothy came back to the truck and said: I dont think hes okay. And I dont think hes breathing, but I dont know. He then got into Savages car, in which he and Coyne returned to Tuschens house, leaving McCauliffes body behind; Savage followed in Coynes truck.^[17]

According to Kimberly, Timothy then came to the Motel 6, carrying McCauliffes wallet in a plastic bag.^[18]Timothy told Robert: We killed him, bro.

Timothy, Robert, and Kimberly bought cleaning supplies at a Wal-Mart. After dropping Timothy off at Savages home, Robert and Kimberly went on to the house, where Robert cleaned the garage with ammonia and Tuschen gave Kimberly bedsheets to dispose of. Behind a flea market in Redding, they burned the bedsheets and Robert burned some of his clothing; Skelton burned some of his there at another time.^[19]

At 9:30 a.m. on November 21, Timothy woke Laura Minkoff at home and said: We didnt mean for it to go this far. Unaware of his phone message, she did not know what he was talking about. After they listened to it, he told her about the fight, claiming that he had intended only to take McCauliffe to her place to make him confess.^[20] Later, Timothy claimed that he had left the house after putting McCauliffe on the porch, had learned by calling Robert that the others had taken McCauliffe to the boat ramp, and had gone there only to find him dead; after that, they had bought cleaning supplies and cleaned up the house.^[21] To corroborate his story, Timothy handed Minkoff the watch she had given McCauliffe; Timothy also told her that they had thrown McCauliffes wallet, which she had made for him, into the river.

On November 22, defendants, Coyne, Skelton, Savage, and Kimberly met and agreed to keep silence. After spending the night at Minkoffs home, Timothy and Savage went to Sacramento for several days.

Forensic evidence

The police found McCauliffe at the boat ramp around 8:00 a.m. on November 21. The first officer on the scene caught a heavy smell of insecticide, which he recognized as Diazinon.^[22] He determined that McCauliffe was dead.

Forensic pathologist Dr. Susan Comfort found that the chemical smell coming downwind emanated from an oily liquid on the victims person and clothes. A frothy red-pink fluid was coming out of his nose and mouth, which struck Dr. Comfort as a bit peculiar.

The smell was so overpowering that Dr. Comfort and her assistants began examining the body outdoors. After they took it inside, she donned a respirator, but nevertheless suffered nausea, asthmatic symptoms, a sore throat, and a headache during and after the autopsy.

The victims head and neck had multiple blunt force trauma injuries consistent with a very severe beating. These included a deep laceration toward the back of the head which went completely through the scalp and pulled it away from the skull, a broken nose, deep bruising and swelling around the eyes, and many other abrasions and contusions, some possibly from a bottle striking the forehead.^[23]

On the left upper chest and arm, the skin was sloughing off and discolored, as if chemically burned. There were also multiple abrasions and contusions on the arms and legs and possible defensive wounds on the hands and forearms.

The victims brain, which was mildly swollen, showed surface hemorrhages just below the scalp and a subarachnoid hemorrhage in the cerebellum. The brain had also suffered global hypoxic ischemic injury, meaning that neurons had started to die from impaired blood flow; the insult to the brain had occurred four to six hours before death. In other words, there was a prolonged period of time before he finally expired.

Internal examination further showed bleeding in the neck muscles and soft tissues consistent with a forceful injury to the neck surface, and bruising in the small intestine consistent with a blow to the abdomen.

Blood and lung tissue tests detected Diazinon, the blood at a level of 0.05 microgram per milliliter and the lung tissue at the higher level of 0.16 microgram per gram. The victims vitreous humor, or eye fluid, contained Diazinon metabolites, indicating that the substance had passed through the liver.

Froth like that found on the victims mouth normally results from death by seizure or drowning; Dr. Comfort had never seen it before in a beating death. Diazinon, an organophosphate poison, can cause the respiratory distress which produces such froth. Dr. Comfort also found a high level of pulmonary edema, another possible result of organophosphate poisoning.

The victims buttocks and the backs of his legs were covered with loose stool. This is rarely found postmortem. It can be a symptom of organophosphate poisoning.

The victims blood alcohol level was .26 percent, which is too low to be toxic. In an alcohol-tolerant person, it might not even cause unconsciousness.^[24]

On the morning of November 21, it was really chilly at the boat ramp, with a cold wind blowing off the river. A person left out in such conditions, unconscious or incapacitated and wearing soaking-wet light clothing, will likely develop hypothermia. As body temperature at the time of death was unknown, Dr. Comfort could not say for sure that hypothermia contributed to death, but she thought it very probable.

The multiple contributory factors made the cause of death really difficult . . . to analyze. However, Dr. Comfort concluded that the victim died of blunt force trauma, with likely contributory factors including Diazinon poisoning and hypothermia.

Dr. Comforts autopsy report listed Diazinon poisoning only as a contributory factor because the toxicology tests were inconclusive. The true Diazinon level at the time of death was probably unknowable: Diazinon breaks down over time, and the samples were not tested until weeks after the victims death. The dead neurons in his brain, suggesting breathing difficulty, pointed to Diazinon.

Hypothermia was also a likely contributory factor because it would slow respiration in a person already breathing with difficulty from poisoning and head injuries, plus the effect of a .26 percent blood alcohol level. These factors would work together to depress brain function lethally.

Other expert testimony

An expert on organophosphate poisoning, Dr. Michael OMalley, opined that full-blown poisoning (rather than odor-caused direct irritant effects) was unlikely to be the main cause of death because the toxicology results did not show sufficient absorption into the victims system.^[25]

Dr. Comfort did not disagree with Dr. OMalleys conclusion. She took exception, however, to his ascription of the victims oral nasal froth, copious diarrhea, [and]

pulmonary edema to terminal hypoxia rather than Diazinon poisoning: she had not seen such froth or diarrhea in any purely asphyxial death. She also noted that Dr. OMalleys report erroneously discussed nonexistent urine test results rather than the actual vitreous humor test results, which could have affected his analysis.

Defense case

Robert called Tuschen and Skelton as witnesses.

In addition to the testimony already mentioned, Tuschen stated that she never smelled any chemical or pesticide odor on her premises and never saw anyone washing off the porch. She cleaned up the blood inside because she did not want her younger children to see the mess. She did not know what happened at her house on the night of November 20-21 after Timothys initial fight with McCauliffe. She admitted, however, that she had given bedsheets to Kimberly and possibly a jug of Diazinon to her or Robert to be burned. She also admitted that when Timothy was in jail, she told him to tell a potential witness not to talk to the police.

Skelton was called to impeach Coynes credibility by portraying him as a full participant in the crimes. However, Skelton did not deny his own involvement.

DISCUSSION

I

Timothys contentions

A.Insufficient evidence of conspiracy to commit torture

Timothy contends that the evidence does not support his conviction of conspiracy to commit torture (count 2); furthermore, since he was charged only with derivative liability, the failure to prove that he conspired with the perpetrators requires reversal of all his convictions.^[26] The evidence on this count was sufficient.

Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or more persons conspiring to commit any crime. [Fn.] A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. [Citations.] (People v. Morante (1999) 20 Cal.4th 403, 416.) Thus, the People had to prove that defendant specifically intended (1) to

agree with another person to commit torture and (2) to commit the elements of that offense. (People v. Jurado (2006) 38 Cal.4th 72, 123.) However, since a conspirator is responsible for everything done by his coconspirators as part of their common design, the People did not have to prove that defendant personally committed or intended personally to commit torture. (People v. Morante, supra, 20 Cal.4th at p. 417.)

Circumstantial evidence may prove conspiracy without an express verbal agreement. (People v. Longines (1995) 34 Cal.App.4th 621, 626.) This evidence may include the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)^[27]

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 12022.7 upon the person of another, is guilty of torture. []  The crime of

torture does not require any proof that the victim suffered pain. ( 206.)

Viewed most favorably to the judgment, the evidence showed: After beating McCauliffe severely, Timothy urgently summoned Robert, Skelton, and Coyne and used the most inflammatory language possible -- telling Robert that McCauliffe had fuck[ed] or rap[ed] their mother -- to incite them to further violence for the purpose of revenge . . . or for any sadistic purpose ( 206).^[28] The jury could reasonably have inferred that Timothy knew Roberts capacity for rage and meant to trigger it. Then, having watched Robert brutally beat the already helpless McCauliffe, Timothy inflicted further pain on him by dragging him face-down into the garage. Then (apparently making no effort to intercede), Timothy watched Robert pour insecticide on McCauliffe, which any reasonable person would have expected to cause cruel or extreme pain and suffering. ( 206.) (Even if Timothy had not expected that, McCauliffes cries -- I cant see and It burns -- would have revealed that it did so.) Then, Timothy orchestrated the next stage of the proceedings, directing McCauliffes removal from the house

(minus wallet and cell phone) by Robert and his friends. Timothy could only have expected them to do more of the same to McCauliffe once they reached their destination. Furthermore, his remark about the Senior Tree shows that he expected them to take McCauliffe to the park, a deserted and bitterly cold spot where they could torture him further without fear of discovery or intervention.

It is immaterial that Timothy did not personally beat McCauliffe again after the others came to the house, that he did not tell them where to take him, that he did not go with them to the park, and that he did not communicate with them there. He acted consistently from beginning to end: having beaten McCauliffe into helplessness, he set out to ensure that Robert and their friends would continue what he had started. Since McCauliffe was already undergoing pain and suffering before they reached the house, the jury could reasonably have found that Timothys conduct from the moment he summoned them constituted the formation of a conspiracy with them to torture McCauliffe, followed by overt acts by Timothy and the others toward its execution.

Because sufficient evidence supported Timothys conviction for conspiracy to commit torture, we need not address his argument that the Peoples other theories of his liability were unsupported.

B. Inadequate instructions on derivative liability

Timothy contends that the instructions on derivative liability were so conflicting, complex, generic and amorphous [alternatively, confusing, contradictory, imprecise, and open-ended] as to be meaningless to lay jurors; as a result, he was convicted by a jury not required to make factual findings necessary to a verdict consistent with the mandate of Amendments Five, Six, and Fourteen. This claim is not preserved for appeal.

Timothy does not argue that the instructions were incorrect, only that they were unclear or incomplete. A defendant may not raise this claim on appeal unless he requested clarifying instructions below. (People v. Alvarez (1996) 14 Cal.4th 155, 222-223.) As Timothy did not do so, the claim is forfeited.

But even if it were properly before us, we would reject it. Though Timothy complains that the instructions mentioned underlying crimes or degrees of crimes generically and non-specifically rather than spelling them out, he cites no authority holding that such specificity is required. We do not consider legal propositions asserted without authority. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

Finally, though Timothy insists that the jurors must have been confused, he cites no evidence that they were. His unfounded speculation is not cognizable.

C. Kimberlys marital status -- prosecutorial misconduct, judicial error, and ineffective assistance of counsel

At the preliminary hearing, the magistrate ruled that Kimberly could not assert the marital privilege because her marriage was void. She then testified at the preliminary hearing and at trial under a grant of immunity.

Defendants contend that the magistrate erred, the prosecutor committed misconduct by misstating the applicable law, trial counsel were ineffective for failing to discover the correct law and raise an objection, and defendants suffered prejudice because Kimberlys testimony was crucial to the Peoples case. These contentions fail.

Background

On January 11, 2005, at the preliminary hearing (Judge William Gallagher presiding), Kimberly testified that she was supposedly married to Robert on June 30, 2004, in Nevada, and lived with him thereafter. Judge Gallagher permitted voir dire on her marital status.

Asked why she thought herself unmarried, Kimberly answered: I was told that [Robert]s still married. Though she considered herself married, the prosecutor had told her that she could not assert the marital privilege.

Once Kimberly had identified Amanda Meridith as Roberts separated wife, the prosecutor proffered the family law court file in the pending case Meridith v. Stayer. He asked Judge

Gallagher to judicially notice that the file did not contain a final order of dissolution, which proved that Roberts and Kimberlys marriage was void.^[29]

After inspecting the file, Judge Gallagher asked Roberts counsel: Is there any real dispute about the fact that thats still an intact marriage? Counsel replied: Not that I know of. Counsel could not cite any authority that Roberts and Kimberlys marriage might be merely voidable.

Judge Gallagher ruled: The Court determines that the witness is not legally married to Robert Stayer because his prior marriage has not been dissolved.

Judge Gallagher appointed counsel to advise Kimberly about testifying.^[30] After reaching a written agreement with the prosecutor, she resumed the stand and testified at length.

Jury trial (Judge Stephen Baker presiding) began on July 19, 2006. No party renewed the issue of Kimberlys marital status at trial.

In this court, defendants requested judicial notice of the court file in Meridith v. Stayer (Shasta County Sup. Ct., Case No. 149249) and of Roberts and Kimberlys marriage certificate dated June 30, 2004. We granted the request. The court file shows that a final judgment of dissolution was entered on July 27, 2005 (after the preliminary hearing, but before trial) nunc pro tunc to February 20, 2004 (before Roberts and Kimberlys marriage ceremony).^[31]

Analysis

Defendants contend that because on July 27, 2005, the family court entered judgment of dissolution in Meridith v. Stayer nunc pro tunc to February 20, 2004, Roberts and Kimberlys marriage was valid when entered into on June 30, 2004. Therefore, they maintain, Judge Gallagher erred on January 11, 2005, by finding the marriage void and barring Kimberly from asserting the marital privilege -- even though the nunc pro tunc judgment of dissolution had not yet been entered. Moreover, they maintain, the prosecutor committed misconduct by

asking Judge Gallagher to judicially notice that the file in Meridith v. Stayer did not contain any order or judgment of dissolution, and trial counsel provided ineffective assistance by failing to object -- even though the file did not then contain any such order or judgment. On these facts, the argument is specious.

But even if a nunc pro tunc judgment of dissolution had been entered by the preliminary hearing, the argument would still fail. Only a validly married person may assert the marital privilege. (Evid. Code, 970; People v. Glab (1936) 13 Cal.App.2d 528, 532-536 [bigamous spouse cannot do so].) Entering a judgment of dissolution nunc pro tunc does not retroactively validate a marriage which was bigamous when entered into. (Corbett v. Corbett (1931) 113 Cal.App. 595, 598-599; see In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 504. Cf. 281; Fam. Code, 2201.) Therefore, as the magistrate ruled, Kimberly could not assert the marital privilege.

Because the magistrates ruling was clearly correct, trial counsels failure to make a meritless contrary argument was not ineffective assistance. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)

D. Failure to give a unanimity instruction

Timothy contends that his convictions must be reversed because the trial court did not give a unanimity instruction.^[32] We disagree.

In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [] This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] . . . The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. [Citation.] []  On the other hand, where the evidence shows only a single discrete crime but leaves room for

disagreement as to exactly how that crime was committed or what the defendants precise rule was, the jury need not unanimously agree on the basis or, as the cases often put it, the theory whereby the defendant is guilty. [Citation.] (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)

The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a particular crime [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate when conviction on a single count could be based on two or more discrete criminal events, but not where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. [Citation.] (Russo, supra, 25 Cal.4th at pp. 1134-1135; italics added.)

What Russo calls multiple . . . acts [composing] one discrete criminal event (25 Cal.4th at p. 1135) is otherwise known as a continuous course of conduct. A unanimity instruction is not required when . . . the acts are so closely connected that they form part of one and the same transaction, and thus one offense or when the statute [defining the offense] contemplates a continuous course of conduct or a series of acts over a period of time. [Citation.] (People v.

Jenkins (1994) 29 Cal.App.4th 287, 299 (Jenkins).) The exception applies where the jury could not reasonably conclude that the defendant did some of the alleged acts but not others, or where the defendant offers essentially the same defense to all the acts. (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)

As to the offenses and theories at issue here: (1) Jurors need not unanimously agree on a single overt act to convict a defendant of conspiracy, but must agree only that at least one overt act was committed by a conspirator. (Russo, supra, 25 Cal.4th at pp. 1135-1136.) (2) Jurors need not unanimously agree whether a defendant was a direct perpetrator or an aider and abettor so long as they agree he played one of those parts. (People v. Santamaria (1994) 8 Cal.4th 903, 918-920; People v. Hernandez (1995) 34 Cal.App.4th 73, 77-80.) (3) Torture, as defined by statute, contemplates a continuous course of conduct. ( 206; Jenkins, supra, 29 Cal.App.4th at p. 300.) (4) Kidnapping continues as long as the victims forcible detention continues. ( 207; People v. Chacon (1995) 37 Cal.App.4th 52, 60.)

Timothy asserts that the lack of a unanimity instruction prejudiced him as to counts 2, 3, 4, and 6 because the evidence showed multiple acts going to each count and we cannot know whether the jury unanimously agreed that he had committed any particular act. But the acts he enumerates constitute a single

discrete criminal event or continuous course of conduct as to each count; thus a unanimity instruction was not required. (Russo, supra, 25 Cal.4th at p. 1135; Jenkins, supra, 29 Cal.App.4th at p. 299.)

On count 2 (conspiracy to commit torture), Timothy lists the following acts: his call to Robert, his statement to Robert on the porch, and the amorphous fact that [sic] Timothys being in and around the others, as matters unfolded. As indicated in part I.A. above, these acts were so closely connected as to constitute a single transaction directed by Timothy.

On count 3 (torture), Timothy lists the following acts: punching McCauliffe in the bedroom, Roberts assault on McCauliffe on the porch, Roberts pouring of insecticide on McCauliffe in the garage, and the group beating of McCauliffe at the boat ramp. Like the acts Timothy cites as to count 2, these acts formed a continuous course of conduct. Instead of stopping with the beating of McCauliffe in the house (which alone might not have satisfied the elements of the offense), Timothy immediately summoned Robert and friends to continue the attack.^[33]

On count 4 (kidnapping), Timothy lists the following acts: forcing McCauliffe from the bedroom out onto the porch, dragging McCauliffe into the garage, walking McCauliffe from the garage to Coynes truck, and the others driving McCauliffe to the boat ramp.^[34] (He questions whether the jury could have found all of these acts to constitute the substantial movement by force which section 207 requires. Because he does not show that the People relied on all of these acts to prove this count, we need not address this point.) Our analysis on the previous counts applies equally to this count: all of these acts formed a continuous sequence directed toward the same end.

Finally, on count 6 (destruction of evidence), Timothy lists the following acts: washing the porch, giving McCauliffes wallet to Robert, and the joint purchase of cleaning supplies to take to the house. As on the other counts, he does not show that the People specifically relied on all of these acts. And as on the other counts, all of the acts he cites were closely connected and directed toward the same end, whether they occurred before or after McCauliffes death.

Timothy asserts that the continuous-course-of-conduct exception to the unanimity requirement does not apply because this is not a situation where the jury had to believe that he did all the acts or none of them or where he offered a single defense to all of them. But Timothy does not explain how the jury could have believed that he did some acts and not others, or what separate defenses he offered to the different acts. Since he has not supported this contention with a developed argument, we need not consider it further. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

Timothy also claims that his conviction without a unanimity instruction violated due process. As a unanimity instruction was not required, we reject this contention.

E. Failure to instruct sua sponte on conspiracy to commit a battery as a lesser included offense to count 2

Timothy contends that his conviction on count 2 must be reversed because the trial court did not instruct the jury sua sponte on conspiracy to commit battery as a lesser included offense of conspiracy to commit torture. We disagree. Even assuming for the sake of argument the trial court erred by not instructing on conspiracy to commit a battery, that error is harmless in light of the fact that all charged defendants were convicted of the substantive crime of torture. It is not reasonably probable that the jury would have convicted of the crime of conspiracy to commit only a battery and then found defendants guilty of the substantive crime of torture. (See People v. Breverman (1998) 19 Cal.4th 142, 165 [failure to instruct on lesser included offense subject to harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836].)

F. Alleged error in instructions on conspiracy, aiding and abetting, and natural and probable consequences

Timothy contends that the instructions could have allowed the jury erroneously to convict him of first degree murder without finding that that crime (rather than implied malice murder) was a natural and probable consequence of the object of any conspiracy Timothy took part in or any act he aided and abetted.^[35] He is mistaken.

The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. . . . Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its natural and probable consequences, even though it was not intended as a part of the original design or common plan. [Citations.] (People v. Prettyman (1996) 14 Cal.4th 248, 260-261 (Prettyman).)

In People v. Croy [1985] 41 Cal.3d 1, we set forth the principles of the natural and probable consequences doctrine as applied to aiders and abettors: [An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act may be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury. (Id. at p. 12, fn. 5.) Thus, under Croy, a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the natural and probable consequence of the target crime. (Prettyman, supra, 14 Cal.4th at p. 261.)

If the trial court instructs on natural and probable consequences, it must identify[] and describ[e] each potential target offense supported by the evidence. (Prettyman, supra, 14 Cal.4th at p. 270.)

Citing only Prettyman, Timothy asserts that the natural and probable consequences instructions here needed to name first degree murder, rather than murder per se, as the target offense. But Prettyman does not so hold, and we have not found any other case that does. For want of supporting authority, Timothys contention fails. (Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at p. 1794.)

In any event, the trial court instructed on the Peoples theories of first degree murder and directed the jury to consult those instructions in deciding whether the crime of murder was committed[.] Thus, even if the jury had to be told that the target offense was first degree murder, the instructions sufficiently did so.

G. Corroboration of accomplice testimony on count 6

Timothy contends that the testimony of his accomplices on count 6 (destruction of evidence) was inadequately corroborated to justify conviction on that count. (Cf. 1111.)^[36] We are not persuaded.

This is Timothys entire argument on the merits: Everything we know about destruction of evidence falls into two categories. The first category includes the police discovery of burned and partially burned items in burn pits, and the police discovery of indicia of cleaning at the [Tuschen] house. The second category includes statements about cleaning materials, cleaning, burning, and the like from accomplices Kim[berly] Stayer, Catherine Tuschen, Danny Coyne and Kevin Skelton. Stated simply, the former category is insufficient to corroborate the accomplice testimony in the latter statement.

Bald assertion without supporting argument or authority is insufficient to require a response. Therefore, we need say nothing more about this contention. (In re S.C., supra, 138 Cal.App.4th at p. 408.) Nonetheless, the partially burned

fire-pit evidence is sufficient to corroborate the accomplice testimony.

H. Instructions on the special circumstance

Timothy contends that the trial court erred prejudicially as to the special circumstance (murder committed in the commission of kidnapping) by failing to instruct the jury with CALCRIM Nos. 700 and 703. According to Timothy, without these instructions the jury could not have understood the Peoples burden of proof, the required intent, the need to make an individualized finding as to his personal role, and the need to reach unanimity. We disagree.

The trial court gave CALCRIM No. 730 as follows:

The defendants are charged with the special circumstance of murder committed while engaged in the commission of kidnapping.

To prove that this special circumstance was true, the People must prove that:

1. The defendant committed, or aided and abetted, or was a member of a conspiracy to commit kidnapping;

2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more members of the conspiracy commit kidnapping;

3. If the defendant did not personally commit kidnapping, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed kidnapping;

4. The defendants or others with whom the defendants were aiding and abetting or with whom the defendants conspired did an act that caused the death of another person;

5. The act causing the death and the kidnapping were part of one continuous transaction;

AND

6. There was a logical connection between the act causing the death and the kidnapping. The connection between the fatal act and the kidnapping must involve more than just their occurrence at the same time and place.

To decide whether the defendants and the perpetrators committed kidnapping, please refer to the separate instructions that I will give you on [the] crimes. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I will give you on aiding and abetting. To decide whether the defendant was a member of a conspiracy to commit a crime, please refer to the separate instructions that I will give you on conspiracy. You must apply those instructions when you decide whether the People have proved this special circumstance.

The defendants must have intended to commit, or aided and abetted, or been a member of a conspiracy to commit the felony of kidnapping before or at the time of the act causing death.

In addition, in order for this special circumstance to be true, the People must prove that the defendants intended to commit kidnapping independent of the killing. If you find that the defendants only intended to commit murder and the commission of kidnapping was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.

CALCRIM No. 700 (Special Circumstances: Introduction), not given here, states:

If you find (the/a) defendant guilty of first degree murder, you must also decide whether the People have proved that [one or more of] the special circumstance[s] is true.

The People have the burden of proving (the/each) special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. [You must return a verdict form stating true or not true for each special circumstance on which you all agree.]

In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree.

[You must (consider each special circumstance separately/ [and you must] consider each special circumstance separately for each defendant.)] (CALCRIM No. 700 (2006-2007).)

CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990 -- Felony Murder), also not given, states:
If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of ______, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.

In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a

conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following:

1. The defendant was a major participant in the crime;

AND

2. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life.

[A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.]

[The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance[s] of _______ to be true.]

[If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find (this/these) special circumstance[s] true, you must find either that the defendant acted with intent to kill or you must find that the defendant acted with reckless indifference to human life and was a major participant in the crime.]

If the defendant was not the actual killer, the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of ______ to be true. If

the People have not met this burden, you must find (this/these) special circumstance[s] (has/have) not been proved true [for that defendant]. (CALCRIM No. 703 (2006-2007).)

The Bench Notes to CALCRIM No. 700 state that the trial court has a duty to instruct sua sponte that in case of a reasonable doubt the jury must find the special circumstance not true. (CALCRIM No. 700 (2006-2007), citing People v. Ochoa (1998) 19 Cal.4th 353, 419.) The Bench Notes to CALCRIM No. 703 state: The court has a sua sponte duty to instruct on the mental state required for accomplice liability when a special circumstance is charged and there is sufficient evidence to support the finding that the defendant was not the actual killer. [Citation.] If there is sufficient evidence to show that the defendant may have been an accomplice and not the actual killer, the court has a sua sponte duty to give the accomplice intent instruction, regardless of the prosecutions theory of the case. (CALCRIM No. 700 (2006-2007), citing People v. Jones (2003) 30 Cal.4th 1084, 1117.)^[37]

Assuming that the trial court should have given these instructions, its failure to do so was harmless because the jury necessarily made the required findings under other properly given instructions. (People v. Jones, supra, 30 Cal.4th at pp. 1119-1120; People v. Jennings (1991) 53 Cal.3d 334, 387.)

As to burden of proof, the jury received CALCRIM Nos. 103 and 220, both instructing that the People had the burden to prove each element of a crime and special allegation beyond a reasonable doubt. (Italics added.) In addition to CALCRIM No. 730, the jury was instructed on the elements of kidnapping with CALCRIM No. 1215, and on aiding-and-abetting and conspiracy with the array of instructions cited in part I.F. These instructions sufficiently explained the Peoples burden of proof as to the special circumstance.

As to intent, the jury received CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together), which instructed that though kidnapping requires only general intent, commission of murder while engaged in kidnapping requires a specific intent which would be explained in the instruction for that allegation (CALCRIM No. 730), as it was. In addition, the aiding-and-abetting and conspiracy instructions specified the intents required for conviction on those theories.

As to an individualized finding on Timothys personal role, the trial court gave CALCRIM No. 203, which instructed the jury to consider the evidence and decide each charge for each defendant separately. The court also gave CALCRIM Nos. 540A (Felony Murder: First