Opinion
E076627
07-01-2022
THE PEOPLE, Plaintiff and Respondent, v. YOLANDA RAMONA BOURASSA, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Interim Senior Assistant Attorney General, and Alan L. Amann and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. CR50533 John D. Molloy, Judge.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Interim Senior Assistant Attorney General, and Alan L. Amann and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Petitioner Yolanda Ramona Bourassa enlisted her boyfriend, Robert Duke, and Duke's friend, Richard Hann, in the old badger game. Petitioner's plan was to use an offer of sex to get money from a victim and to lure him to her home; Duke and Hann would then chase him out before she had to make good on the offer.
Petitioner carried out her part of the plan. Instead of chasing the victim out, however, Hann gave him a vicious beating. At petitioner's suggestion, the three took the victim to a bank in his own truck, made him reveal his PIN, and tried to use his ATM card to get money. There was a toolbox in the back of the truck; Hann said, "You're going to come up with some money for me now, pal, or I'm going to stuff you in that box."
For some reason, the ATM card did not work. Duke and Hann dropped petitioner off at her home. Duke and Hann then drove away with the victim in the truck. The next day, the truck - with the victim's dead body inside the toolbox - was found at the bottom of a pond.
Petitioner pleaded guilty to murder, with special circumstances, and was sentenced to 25 years to life in prison. Thereafter, Penal Code section 1170.95 was enacted, which allows certain persons convicted of murder to petition for resentencing. Under section 1170.95, as relevant here, petitioner was entitled to resentencing unless she acted with reckless indifference to human life.
All further statutory citations are to the Penal Code, unless otherwise indicated.
The trial court found that she did. Petitioner contends that there was insufficient evidence to support this finding. We disagree. Petitioner knew that Hann was a loose cannon, had threatened to kill the victim by stuffing him in the toolbox, and had a motive to kill the victim. Hence, we will affirm.
I
STATEMENT OF FACTS
The evidence that the trial court considered - without objection - consisted of: (1) the published and unpublished portions of our opinion in Duke and Hann's appeal (People v. Duke (1999) 74 Cal.App.4th 23), (2) a partial transcript of the preliminary hearing, (3) a transcript of petitioner's trial testimony, (4) a transcript of two other witnesses' trial testimony, and (5) a transcript of the sentencing hearing. It showed the following.
Section 1170.95 was amended, effective January 1, 2022, so as to provide that "[t]he court may . . . consider the procedural history of the case recited in any prior appellate opinion." (§ 1170.95, subd. (d)(3), Stats. 2021, ch. 551, § 2, italics added.) Thus, it prohibits consideration of the facts of the case recited in any prior appellate opinion. (People v. Clements (2022) 75 Cal.App.5th 276, 292.) Petitioner notes this amendment, but she disclaims any contention that the trial court erred by considering the facts stated in our previous opinion as well as any objection to our consideration of those facts in determining the sufficiency of the evidence.
Some of petitioner's testimony was given at hearings outside the presence of the jury pursuant to Evidence Code section 402. Again, however, there was no objection to this evidence.
Petitioner was a drug addict and prostitute. Duke was her boyfriend. They lived in a garage on University Avenue in Riverside. Petitioner's teenage son and several other people lived in the house in front. Duke did not like petitioner working as a prostitute, so she took to stealing money from would-be customers instead.
Hann was Duke's friend. His girlfriend had recently been arrested; he was upset and anxious about how he would get money to bail her out.
On July 5, 1993, petitioner needed money for food and drugs. She told Duke and Hann that she was going to "find a john and bring him into the garage." After she got the money, "They were to come in . . . and tell [the victim] to get out of there." This plan was all her idea.
Pursuant to the plan, petitioner started "hitchhiking." Victim Christopher Hasko picked her up. She asked him, "You want to go party?" He said yes. He dropped her off at a McDonald's and agreed to meet her there later.
When the victim returned, petitioner said she needed money to get her son something to eat. He said he would have to go to the bank. Petitioner got into his truck; they picked up her son, then went to a bank. The victim got $20 from the ATM. Petitioner asked him to get $20 more, and he did. Petitioner saw the receipt, which said he had $100 to $200 still in his account. They bought food, then went to the garage. Petitioner's son went to the house in front.
Petitioner and the victim had been in the garage only a few minutes when Duke and Hann barged in. They acted angry and screamed, "What are you doing with [Duke's] old lady?"
Hann immediately started "hitting [the victim] around." He also choked the victim. Petitioner "wasn't surprised." She said either "Leave him alone" or "Stop hitting him." Nevertheless, Hann kept hitting the victim.
Petitioner testified that, when she told him to stop hitting the victim, Hann said, "Shut up . . . or I'll give you the same." However, she did not believe him; she understood this to be part of the pretense.
One Joseph Barber was next door. He heard the victim screaming, "Don't hurt me. Please don't hurt me" "at the top of his lungs," "[o]ver, and over, and over, and over, and over, and over," "as if he was being tortured." "It sounded like he was in agony." Once, he heard petitioner say, "[S]top and listen to what he ha[s] to say." The beating lasted 10 to 20 minutes.
Barber testified that he heard the victim screaming for "an hour and a half at least." The trial court, however, expressly accepted petitioner's estimate of 10 to 20 minutes and rejected Barber's estimate.
During the beating, petitioner told Hann that the victim had more money in the bank. The group went through the victim's wallet and took his ATM card. Petitioner said, "We have to go to the bank to get money."
All four got into the victim's truck; Hann drove. Petitioner told the victim, "Just do . . . what you're told to do." Hann threatened to stuff the victim into a toolbox that was in the truck bed if he did not come up with some money. Hann then struck the victim in the face with his elbow. They went to two banks but were unable to get cash using the PIN that the victim gave them. At the first bank, Hann hit the victim again.
Hann later told a friend that every time he thought about his girlfriend being in jail, he hit the victim again.
Petitioner claimed that "the victim was conscious all the time [she] was around," and his only visible injury was a bloody nose.
Petitioner said either "[T]ake me back" or "Let him go." Duke and Hann took her back to the garage and dropped her off. Petitioner was not sure "if we all went back in [the garage] or if they took off from there." According to petitioner, she asked "Where are you going?," and either Duke or Hann said "they [we]re going to let him go." They then drove off.
According to Barber, however, he saw the truck come back; three people got out, but the victim was not one of them. He overheard an argument about "who[se] is what," - people saying "'This is mine' or 'This is yours.'"
According to petitioner, the next morning, Duke and Hann told her that they had left the victim unconscious in his truck in Rubidoux. They had walked back to Riverside. They were both wearing jewelry, which they said they had gotten from the victim.
An acquaintance of Hann, who lived in Rubidoux, testified that on July 6, between 7:00 and 8:00 a.m., Hann and another man showed up unexpectedly at his home. Hann asked for a ride to Riverside; the acquaintance said no because he did not have a car.
Also on July 6, the victim's truck was found underwater in a pond at the bottom of a rock quarry in Rubidoux. It had gone off a cliff, with the engine running. The victim's body was found, also underwater, inside the toolbox.
The cause of death was strangulation, although the pathologist could not rule out drowning. Decomposition had obscured any external injuries that the victim may have had. There was blunt force trauma to his head; this could have been caused by the fall off the cliff. The pathologist believed that the victim was already dead when he was placed into the toolbox, though he was not certain.
Petitioner claimed that she first learned that the victim had been killed when she was arrested.
Arguably, there was evidence that petitioner was present when the truck was pushed off the cliff. Barber testified that Duke, Hann, and petitioner all drove away from the garage together, with the victim inferably already in the toolbox. However, petitioner was not with Duke and Hann when they tried to get a ride back from Rubidoux. In any event, the trial court found that petitioner was not present when the truck went off the cliff.
Hann told a friend that he had beaten someone up for money. He said that when he and Duke were unable to get the victim's money out of the bank, they beat him again. He and Duke then killed the victim, so he could not identify them, by putting him in the toolbox of his truck and driving the truck over a cliff into a quarry.
At the time of the crime, and for "a couple of years" thereafter, petitioner was in love with Duke. She fell out of love with him before trial, however, because he remained friendly with Hann; she felt that she and Duke were "looking at the rest of . . . our life in prison because [Hann] killed Mr. Hasko."
II
STATEMENT OF THE CASE
In 1994, Duke, Hann, and petitioner were charged with murder (§ 187, subd. (a)), with robbery-murder, kidnapping-murder, and torture-murder special circumstances. (§ 190.2, subds. (a)(17)(A), (a)(17)(B), (a)(18).)
Petitioner entered into a plea bargain that called for her to plead guilty to first degree murder and to testify truthfully against Duke and Hann; in exchange, the prosecution would dismiss the special circumstances so that petitioner could be sentenced to 25 years to life in prison.
In 1997, after petitioner did in fact testify - and after Duke and Hann were found guilty - she was duly sentenced to 25 years to life.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. She alleged that she pleaded guilty because she believed that she could be convicted of murder under the felony murder rule or the natural and probable consequences doctrine. By stipulation, the trial court issued an order to show cause and set an evidentiary hearing.
At the end of the hearing, the trial court denied the petition. It found - beyond a reasonable doubt - that petitioner was a major participant in the underlying felonies and that she acted with reckless indifference to human life.
It explained: "[A]t the time of the murder, [petitioner] was not present. . . . But one of the things that I get to consider is her conduct afterwards, and if you read through the transcripts, her conduct afterwards expresses an extraordinary indifference to what might have happened to Mr. Hasko."
"She planned all these things. This was her plan. The notion that she allowed this gentleman who had taken her and her child to get dinner, to be beaten senseless in front of her - I think one of her comments was, once they got in the car after first beating, he gets elbowed into the back of the cab of the truck, and is begging to be released, that she get to simply say 'Well, I got mine' and get out. 'You guys do whatever.' . . . I conclude that this was an extraordinary response and that she acted with - understanding that there were great risks to this gentleman and not caring - she simply wanted out because she wasn't gaining any more money."
III DISCUSSION
Petitioner contends that there was insufficient evidence that she acted with reckless indifference to human life.
"'We often address claims of insufficient evidence, and the standard of review is settled. "A reviewing court faced with such a claim determines '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.' [Citations.] We examine the record to determine 'whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Further, 'the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'"' [Citation.]" (People v. Flinner (2020) 10 Cal.5th 686, 748.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437, among other things, amended section 189 so as to provide that the felony murder rule (§ 189, subd. (a)) applies to a person only if:
"(1) The person was the actual killer.
"(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
"(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .
"[(4) T]he victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." (§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who has been convicted of murder under a felony murder theory, but who could no longer be so convicted, to petition to have the conviction vacated. (§ 1170.95, subd. (a).)
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by [SB 1437]." (§ 1170.95, subd. (d)(3).)
In 2021, when the trial court ruled, "the prosecution [had] to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Former § 1170.95, subd. (d)(3), Stats. 2018, ch. 1015, § 4.) There was a split of opinion as to what this meant. (Compare People v. Rodriguez (2020) 272 Cal.Rptr.3d 342, 350-355, review granted Mar. 10, 2021, S266652, transferred and ordered not citable Dec. 22, 2021, with People v. Duke (2020) 269 Cal.Rptr.3d 264, 272, review granted Jan. 13, 2021, S265309, transferred and ordered not citable Nov. 23, 2021.) Section 1170.95 was amended, effective January 1, 2022, so as to make it clear that the prosecution must prove to the trial court, sitting as the trier of fact, that the petitioner is guilty beyond a reasonable doubt. (§ 1170.95, subd. (d)(3), Stats. 2021, ch. 551, § 2.) Here, the trial court found petitioner guilty beyond a reasonable doubt, consistent with the amended statute.
If the conviction is vacated and the underlying felony was not charged, the conviction is reduced to the underlying felony, and the petitioner must be resentenced. (§ 1170.95, subd. (e).)
Here, petitioner was not the actual killer; she was guilty of first degree murder, if at all, on an aiding and abetting theory. Moreover, because there was no evidence that she had the intent to kill, she could be guilty of first degree murder only on a felony murder theory. (§§ 188, subd. (a)(3), 189, subd. (a); see also People v. Chiu (2014) 59 Cal.4th 155, 166.)
The crucial question, then, was whether she was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).) She does not dispute the trial court's finding that, because she planned the robbery and the kidnapping, she was a major participant in them. She contends, however, that she was not shown to have acted with reckless indifference to human life.
There are two fairly recent California Supreme Court opinions relating to the meaning of "reckless indifference to human life."
First, in People v. Banks (2015) 61 Cal.4th 788 (Banks), the evidence showed that defendant Matthews acted as the getaway driver in a planned armed robbery, which turned into a murder when another participant shot a security guard. (Id. at p. 795.) Our Supreme Court held that this was insufficient evidence that Mathews acted with reckless indifference to life. (Id. at pp. 807-811.)
It explained: "Reckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death."' [Citation.]" (Banks, supra, 61 Cal.4th at p. 807.) Subjective awareness of the risk of death inherent in a garden-variety armed robbery is not enough. (Id. at pp. 808-810.)
In People v. Clark (2016) 63 Cal.4th 522 (Clark), the defendant participated in the attempted robbery of a computer store during which one of his accomplices shot and killed a bystander. The defendant cased the store; he supplied a fraudulent driver's license and $100 to a co-participant who rented a U-Haul; he also recruited a (possibly innocent) helper to move the computers and drove the helper and another to the scene. (Id. at pp. 535, 536-539.)
The Supreme Court found insufficient evidence that the defendant acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-623.) It characterized reckless indifference to human life as "encompass[ing] a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Id. at p. 617.)
It listed five factors that are potentially relevant to this inquiry. First, "[a] defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 618.) Second, a defendant's physical presence at the scene, while not absolutely required, is relevant, as is the failure to render aid to a victim. (Id. at pp. 619-620.) Third, the duration of the felony is relevant. (Id. at pp. 620-621.) Fourth, it is relevant whether the defendant knows that an accomplice has a propensity to violence, especially lethal violence. (Id. at p. 621.) Fifth, it is relevant, although not controlling, that the defendant took steps to minimize the risk to human life. (Id. at pp. 621-622.) It cautioned, however, "'no one of these considerations is necessary, nor is any one of them necessarily sufficient.' [Citation.]" (Id. at p. 618.)
Regarding the case before it, it said: "Defendant's culpability for [the] murder resides in his role as planner and organizer, or as the one who set the crime in motion, rather than in his actions on the ground in the immediate events leading up to [the] murder. But also relevant to his culpability as planner, there is evidence supporting that defendant planned the crime with an eye to minimizing the possibilities for violence. Such a factor does not, in itself, necessarily preclude a finding of reckless indifference to human life. But here there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery. Given defendant's apparent efforts to minimize violence and the relative paucity of other evidence to support a finding of reckless indifference to human life," it concluded that there was insufficient evidence. (Clark, supra, 63 Cal.4th at p. 623.)
Here, the trial court basically relied on two facts. First, petitioner was present while Hann beat the victim for 10 to 20 minutes. Throughout the beating, the victim was screaming. According to Barber, "It sounded like he was in agony," "as if he was being tortured." This was not part of the original plan, which merely called for Duke and Hann to "tell [the victim] to get out of there." However, petitioner did not intervene or try to stop Hann.
Petitioner testified that when Hann started hitting the victim, she said, either "Leave him alone" or "Stop hitting him," but Hann did not stop. However, this was self-serving testimony which the trial court was entitled to disbelieve. Moreover, even if the trial court believed that she said it, it could have found that she meant it only as part of the agreed-upon pretense, and that Hann took it as such.
Second, after Hann specifically threatened to stuff the victim into the toolbox if he did not come up with some money, and after the group had been unable to get the victim's money from the bank, petitioner bailed out and left the victim with Hann.
We agree that this is sufficient to show reckless indifference to human life. Petitioner knew that Hann was willing to hurt the victim beyond what was necessary to commit the robbery. And she knew that Hann had threatened to stuff the victim into the toolbox if he did not come up with any money. This could reasonably be seen as a threat to kill; in fact, if it was merely a threat to put the victim in the toolbox and then let him out again later, it was not much of a threat. Nevertheless, petitioner left the victim in the truck with Duke and Hann. It is fairly inferable that she knew there was a substantial risk that Hann would kill the victim and that she did not care. It is even inferable that she was trying to distance herself from an anticipated murder.
As already mentioned, the Clark factors are not exclusive. However, when we view the facts through the lens of those factors, we come to the same conclusion.
First, no one used a firearm or weapon of any kind. Accordingly, this factor is not particularly pertinent.
Second, while petitioner was not at the scene of the murder, she did have an opportunity to restrain its commission. She could have told Duke and Hann to let the victim go; moreover, she could have stayed with them until they actually did let him go. Throughout the crimes, she acted as the "shot-caller." She was the one who came up with the original robbery plan, and she was also the one who changed it to a robbery-kidnapping plan. Instead, by getting out of the truck, she gave Hann implicit permission to carry out his threat.
Petitioner asserts that she "was not at the scene of the murder and she did not have the opportunity to prevent it from happening when it occurred." (Italics added.) This neatly sidesteps the question of whether she had the ability to prevent it from happening at all.
Third, the felony lasted a fairly long time. While a precise timeline was never established, there was evidence that the beating alone lasted 10 to 20 minutes, and it was followed by a drive to two separate banks and back. As Clark noted, "[w]here a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation]." (Clark, supra, 63 Cal.4th at p. 620.)
As to the fourth factor, we acknowledge that there is no evidence that petitioner knew that either Duke or Hann had previously used lethal violence. Still, she did know that Hann had just beaten the victim with excessive and gratuitous violence. She also knew that Hann had just threatened to use lethal violence on the victim.
Barber testified that, when the truck got back to the garage, three people got out, and the victim was not among them. Barber also heard a discussion about what was whose, which would mean that the three had already taken the victim's jewelry. The trial court could reasonably have found that the victim was already in the toolbox. Moreover, petitioner would have known that he was in the toolbox. If so, then she knew he was incapacitated and in mortal danger. Finally, she knew that the victim could identify all three of them as the perpetrators of an assault, a robbery, a carjacking, and a kidnapping. Thus, Duke and Hann had a motive to kill him.
The trial court found that petitioner was not present "at the time of the murder . . . . When I say '[t]he murder,' when he finally died, she was not present." This rules out a scenario in which the victim was strangled and his dead body was placed in the toolbox before petitioner was dropped off at the garage. However, it is consistent with a scenario in which (1) the victim was placed in the toolbox, alive, to terrorize him and/or to keep him under control; (2) petitioner was dropped off at the garage; and (3) Duke and Hann killed the victim, most likely by strangling him and then putting his dead body back in the toolbox, but possibly by driving the truck off the cliff. The prosecution specifically argued this scenario. The trial court found that Barber "was a good fact witness. He was probably not a particularly good sequence or time witness . . ., but in terms of the events happening, . . . he was probably spot on" Based on Barber's testimony, which the trial court found to be credible, the scenario above is the most reasonable one.
Petitioner claims that she was entitled to believe Duke and Hann when they said they were going to let the victim go. However, we have only her word that they ever said this. And again, the trial court did not have to believe her.
Fifth, petitioner did nothing to minimize the risk to human life. She did interrupt the beating once, saying, "[S]top and listen to what he ha[s] to say." Inferably, however, this was because she was hoping the victim was ready to give them more money, not because she cared about minimizing the harm to him.
In her reply brief, petitioner complains about the trial court's statement that, when she got out of the truck, she said, "'Well, I got mine'" and/or "'You guys do whatever.'" She argues that there is no evidence that she made either statement. We agree that there is no such evidence. However, even if she did not use those words, they correctly describe her attitude, given what she knew and what she did.
For these reasons, we conclude that the trial court's finding that petitioner acted with reckless indifference to human life was supported by substantial evidence.
V
DISPOSITION
The order denying the petition is affirmed.
We concur: McKINSTER J. RAPHAEL J.