Opinion
C054478
8-6-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LAVENDER et al., Defendants and Appellants.
Not to be Published
Defendants Johnny Lavender and Jamar Antoine Foster doused victim Tracy Norton with gasoline, shot him with a Taser, and beat him during a robbery. An information charged both defendants with attempted murder, robbery, assault likely to cause great bodily injury, assault with a firearm, making criminal threats, burglary, grand theft, grand theft of a vehicle, and false imprisonment. (Pen. Code, §§ 664/187, subd. (a), 211, 245, subd. (a)(1) & (2), 422, 459, 487, subds. (a) & (d)(1), 236.)
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendants guilty of all charges except attempted murder, on which it was unable to reach a verdict. Sentenced to 20 years 8 months, both defendants appeal. Foster argues the trial court erred in admitting his confession. Foster and Lavender both challenge the trial courts imposition of the upper term, arguing the court based the sentence on facts neither found by a jury nor admitted by the defendant. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following the robbery and beating of Tracy Norton, an amended consolidated information charged defendants with attempted murder (count I), robbery (count II), assault likely to cause great bodily injury (count III), assault with a firearm (count IV), making criminal threats (count V), burglary (count VI), grand theft (count VII), grand theft of a vehicle (count VIII), and false imprisonment (count IX). The information also alleged as to counts I, II, and VI that defendants personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). In addition, as to counts V, VII, VIII, and IX, it was alleged defendants personally used a firearm in the commission of the offenses pursuant to sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a)(1), causing them to be serious and violent felonies (§§ 1192.7, subd. (c)(8) and 667.5, subd. (c)(8)).
A jury trial followed. The following evidence was introduced at trial.
Prelude to the Crimes
Around midnight one spring evening in 2007, Lavender and Foster arrived at the apartment of Caitlin Churchill and Chris Scarabello to finalize preparations to rob Tracy Norton. Scarabello found Nortons address and downloaded aerial photos of his property from the Internet. Scarabello also gathered together a silver handgun, a black handgun, a Taser, a bulletproof vest, and duct tape. Churchill drove the men to Nortons residence and waited while the men entered the house.
The Crimes
Early that morning, Norton woke up to find three men standing nearby, pointing guns at his face. Two of the men were black; one was white. The white man, dressed in full camouflage, wore a mask and held a pistol and knife. The two black men wore dark clothes and masks tied around their faces, obscuring them. One of the black men was about six feet tall and slender, and carried a pistol. The other was about five feet eight inches tall, stocky, and carried a revolver.
The men dragged Norton from his bed, kicked and punched him, and handcuffed his hands behind his back. Norton struggled to escape and reach the gun he kept on his headboard, but the men subdued him and he noticed the gun was gone. The taller black man had two guns.
The men continued to beat Norton. They dragged him, naked, into the living room and bound his knees and ankles together with duct tape.
The white male and the taller black male searched the house; the shorter black male guarded Norton. The man pointed a gun at Nortons head and said he was going to kill him because he had tried to escape. After searching the house, the men used the Taser on Nortons side and back until he gave them the combination to his office safe.
The intruders put Norton up against a pillar in his living room and duct-taped him to it. The taller black man brought in a gas can, doused Norton with gasoline, and flicked a lighter on and off. The man told Norton if he could get out, he could live. The shorter black male used the Taser on Nortons side and near his crotch.
The men ultimately got into Nortons truck and drove away. They took Nortons guns, marijuana plants that he testified he had for medical purposes, a small off-road vehicle, and a trailer attached to the truck.
Aftermath of the Crime
The waiting Churchill received a text message on her cell phone from Lavender, telling her they were almost finished. Shortly after, Churchill saw the three men driving down the road in Nortons truck. Scarabello called Churchill on her cell phone and asked if they could stash the stolen goods on her mothers property. She refused, and instead the men decided to take the property to Sheyne Stevensons house. Stevenson was a friend of Lavender and Scarabello.
At Stevensons house, Scarabello backed Nortons truck and trailer up to the garage. Churchill looked inside the trailer and saw marijuana plants, growing equipment, an off-road vehicle, and guns.
Tehama County Sheriffs Deputy Cindie Sharp responded to a 911 call from Norton; she found him upset and injured. Norton had abrasions and bruising on his face, side, arms, back, and chest. His eye and lips were swollen and bruised. Norton suffered scratches on his back and chest, and a laceration and red marks on his wrists. Sharp smelled gasoline in the house, which had been ransacked. Sharp found duct tape, handcuffs, and a handcuff key in the house.
A day or so later, Scarabello, Lavender, and Foster returned to Stevensons house. They smoked marijuana and talked about the incident. Lavender told Stevenson that the trio had staked out Nortons house all night before entering the next morning. Scarabello woke up Norton, and Lavender took the gun from Nortons nightstand. Someone bound Norton with duct tape, and Foster shot him with a Taser. The men handcuffed Norton, poured gasoline on him, and eventually left with the truck, trailer, and marijuana. Foster admitted to Stevenson that he shot Norton with the Taser.
A day or two after hearing the full story of what had happened, Stevenson asked Scarabello to remove the stolen goods from his garage. Scarabello, Lavender, and Lavenders brother removed the items. Stevenson took a picture of Lavender, Lavenders brother, and the stolen marijuana with his cell phone camera.
A few days after the robbery, officers executed a search warrant at Stevensons house. Although initially Stevenson denied knowing details about the robbery, he later admitted he had lied. Stevenson provided the names of everyone involved and gave an account of the robbery.
After his arrest, Foster voluntarily spoke with detectives. He gave a detailed confession of the robbery and beating of Norton.
Defense Case
Lavender
Patricia Pilkington, who lived with defendant Lavender, testified she was with him the night of the robbery. She would have known if he had left during the night. Lavender was there the next morning and stayed with her children while she went to a doctors appointment from 8:45 a.m. to 10:30 a.m.
Sabrina Wilson testified she saw Lavender at his apartment the night of the robbery. He was still there when she left around 12:30 a.m. Lavender was there the next morning when Wilson picked up Pilkington for her doctors appointment and was there when they returned around 10:30 a.m.
Lavenders brother testified that the day of the robbery, he and Lavender went to Stevensons house to see some marijuana they had heard about. Two black men were there with Scarabello and Stevenson. Lavenders brother took a picture of the marijuana with his cell phone camera.
Two women testified they went to a concert with Lavender the day after the robbery. They were with him until about 2:00 oclock the next morning.
Foster
Gabriel Paoli testified he played basketball with defendant Foster on the evening before the robbery. They began playing around 5:30 p.m. and played for three-and-a-half hours. After the game, they went to a friends house for a couple of hours.
A detective was recalled as a defense witness. The detective testified that after his confession, Foster provided the clothing he wore the night of the robbery: a pair of Adidas sneakers, jeans, and a T-shirt.
The jury found defendants guilty of counts II through IX and found all special allegations true. The jury was unable to reach a verdict on attempted murder, and the court declared a mistrial as to that count.
The trial court sentenced defendants to the upper term of nine years on count II; a consecutive one-year sentence on count III; a sentence of three years on count IV, stayed pursuant to section 654; a consecutive sentence of two years on count V, stayed pursuant to section 654; a consecutive upper term sentence of six years on count VI, stayed pursuant to section 654; a consecutive sentence of two years on count VII, stayed pursuant to section 654; a consecutive sentence of eight months on count VIII; and a consecutive sentence of two years on count IX, stayed pursuant to section 654. In addition, the court sentenced defendants to a consecutive sentence of 10 years pursuant to section 12022.53. Enhancements for counts V, VI, VII, and IX were stayed and the enhancement for count VIII was stricken. Ultimately, the court sentenced both defendants to a total of 20 years 8 months.
Lavender and Foster filed timely notices of appeal.
DISCUSSION
FOSTERS APPEAL
Admissibility of Fosters Confession
Foster argues the trial court erred in admitting his confession, violating his right to due process. According to Foster, his confession was involuntary, the product of coercion by detectives.
Background
Prior to trial, Fosters defense counsel filed a motion in limine to exclude evidence of statements Foster made when arrested.
At the hearing on the motion, Detective Richard Davidson testified that after he and three officers arrested Foster, Davidson read Foster his Miranda rights. Foster waived those rights and voluntarily agreed to speak with the detective.
Miranda v. Arizona (1966) 384 U.S. 436 .
Officers arrested Foster in an apartment. When defendant answered the door, officers, with guns drawn, arrested Foster, took him to the "ground," and handcuffed him with his hands behind his back. Foster remained handcuffed throughout the interview.
Davidson and Detective Dave Greer interviewed Foster about the robbery for 30 to 45 minutes. Davidson termed Fosters demeanor "good." Foster initially denied involvement in the robbery; subsequently he began to discuss the robbery.
At the hearing, Foster testified he was 20 years old at the time of his arrest. He had been arrested twice before. Foster stated he confessed to officers only because he was "threatened with three consecutive life sentence[s]."
During the interview Foster began to fall asleep because he had taken a prescription painkiller an hour or two before. The medication rendered him unable to understand the detectives questions. Foster felt paranoid, frightened, and tired.
On cross-examination, Foster stated he was tired because of his heavy work schedule the day before his arrest.
The trial court, after reviewing the audio tape and transcript of the interview, denied Fosters motion. The court found the detectives did not induce Fosters statements by artifice, deception, trickery, or fraud.
During the interview, Davidson and Greer both questioned Foster. Greer asked: "How does attempted murder sound? [¶] Robbery. [¶] Robbery, kidnap." Davidson stated: "Oh, uh [Lavenders] . . . booked on nine different charges I think right now." Greer continued: "Three consecutive life sentences is what youre looking at." Davidson stated: "Yeah, this is life dude. This is goodbye, dont come back." Greer echoed: "You dont get to come back."
The detectives told Foster they wanted to hear his side of the story, and that he might have become involved with the wrong people. Greer told Foster: "Jamar may have some room to help himself."
Foster asked the detectives to tell his mother he had been arrested. The detectives refused, and Foster said, ". . . just tell her Im, Im . . . ." Greer interjected with: "That you may never see her again unless she comes to visit. [¶] . . . [¶] Dont waste this opportunity. You might never get it again."
Davidson told Foster he needed to "come clean . . . . Cause thats about the only thing thats going to help you at this point is how . . . much you want to come clean. Its up to you. I get paid either way. You know . . . what were talking about man." After detectives told Foster he would make it to a court appointment on another case, Foster told detectives about the robbery.
Discussion
A confession is involuntary and subject to exclusion at trial only if it is the product of coercive police activity. The use of an involuntary confession constitutes a denial of due process under both the federal and state Constitutions. (People v. Williams (1997) 16 Cal.4th 635, 659 (Williams); People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).)
The prosecution must prove by a preponderance of the evidence that a defendants confession was voluntary. On appeal, we defer to the trial courts findings of fact surrounding the confession if they are supported by substantial evidence, but we review de novo the ultimate question of whether the confession was voluntary. (Holloway, supra, 33 Cal.4th at p. 114.)
A confession is voluntary if the suspects decision to speak is entirely self-motivated because the defendant freely and voluntarily chooses to speak without any form of compulsion or promise of reward. No single factor is dispositive in determining the question of voluntariness. Courts have prohibited psychological tactics by police that, under all the circumstances, are so coercive they tend to produce a statement that is both involuntary and unreliable. (People v. Thompson (1980) 27 Cal.3d 303, 327-328; Williams, supra, 16 Cal.4th at p. 660; People v. Jones (1998) 17 Cal.4th 279, 297-298.)
We determine the voluntariness of a confession by applying a totality of circumstances test. We include factors such as the element of police coercion, the length of interrogation, its continuity, and the defendants maturity, education, physical condition, and mental health. (People v. Haley (2004) 34 Cal.4th 283, 298.)
If police lead a defendant to believe he might reasonably expect benefits such as more lenient treatment by the police, the prosecution, or the court in exchange for his statement, even if truthful, this motivation renders the statement involuntary. However, mere advice or exhortation that it would be beneficial to be truthful, when unaccompanied by either threat or promise, does not render a confession involuntary when the benefit pointed out flows naturally from a truthful statement. (Holloway, supra, 33 Cal.4th at p. 115.)
Here, Foster argues officers coerced his statement through threats and offers of lenient treatment. According to defendant, officers threatened him with three consecutive life terms and the prospect of never seeing his mother again unless she came to visit, presumably in prison. In addition, he had been deprived of sleep and was drowsy from medication. Finally, a previous encounter with police left him physically injured.
The record reveals detectives told Foster he faced three consecutive life sentences unless he helped himself by "com[ing] clean." They offered him one more opportunity to tell the truth, or else he faced charges of robbery, attempted murder, and kidnapping.
In evaluating a claim of coercion we consider whether the influences brought to bear upon the defendant were such as to overbear the defendants will to resist, constituting a motivating cause of the defendants subsequent confession. (People v. Kelly (1990) 51 Cal.3d 931, 952.) However, an officer does not invalidate a subsequent confession by merely commenting on the realities of the situation. Truthful or commonplace statements of possible legal consequences, unaccompanied by threats or promises, are permissible police practices and do not, by themselves, render a statement involuntary and inadmissible. (People v. Seaton (1983) 146 Cal.App.3d 67, 74; People v. Flores (1983) 144 Cal.App.3d 459, 469.)
Here, detectives told Foster he faced a variety of criminal charges. They also told him of the possible sentence such charges might bring. Such comments reflected the reality of Fosters situation and were not coercive threats rendering his subsequent statements inadmissible.
In response to Fosters request that they contact his mother, the detectives informed him he would only see his mother in prison unless he confessed. Foster argues this "was a clear suggestion that if he confessed, he would not have to see his mother in prison, meaning that he would not go to prison."
We disagree. The detectives statement was not a statement promising leniency by either the police, the prosecution, or the court. Instead, the detectives informed Foster that he faced prison for a very long time unless he told the truth.
Nor were the officers exhortations to unburden himself or "come clean" coercive. Police comments that a defendant would feel better or would help himself by cooperating do not, by themselves, constitute improper inducements. (People v. Jackson (1980) 28 Cal.3d 264, 299-300.)
Finally, Foster points to his fatigue and the effect of medication on his ability to withstand the officers questioning. However, the interrogation lasted around 45 minutes, during which Foster never expressed any difficulty in understanding or responding to the detectives questions. Near the end of the interview Foster stated he was "dozing off." By this point, Foster had already provided a detailed description of the events surrounding the robbery of Norton.
At the time of questioning, Foster was a 20-year-old high school graduate who had completed a year and a half of junior college and had previously been arrested twice. Under the totality of the circumstances, the trial court did not err in finding that Fosters statements to the detectives were voluntary and not the product of coercion or promises of leniency.
Lavenders Appeal
Sentencing Error
Lavender appeals, arguing the trial court erred in imposing the upper term for counts II and VI, and the enhancement on count VI, based on facts that were neither found by the jury nor admitted by Lavender. Foster incorporates this argument in his appeal.
Background
The court sentenced defendants to the upper term of nine years on count II, robbery, and a consecutive upper-term sentence of six years on count VI, burglary, which was stayed pursuant to section 654.
In imposing the upper term, the court found the crimes involved great violence, great bodily harm, threat of bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. The court also found each defendant was armed or used a weapon, the victim was particularly vulnerable, the manner in which the crimes were committed indicated planning and sophistication, and defendants engaged in violent conduct indicating a serious danger to society.
As to count II, the court imposed the upper term, stating: "I have already stated all of the general terms specifically. I have relied on . . . great violence, cruelty and viciousness; and . . . planning and sophistication . . . ." As to count VI, the court stated: "In any event, I cite all of the aggravating factors, specifically 421(a)(1), as we have just reviewed it on the record. The maximum — the term is six years as to the enhancement. I select the ten-year term, relying on 421(a)(3), the victim being particularly vulnerable, along with the other generalities stated."
Discussion
Under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that Californias procedure for selecting the upper term violated the defendants Sixth and Fourteenth Amendment rights to jury trial because it gave to the trial judge, not the jury, authority to find the facts that expose a defendant to an elevated upper term sentence. The Constitution prohibits "a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (166 L.Ed.2d at p. 864.)
On appeal, we find Cunningham error harmless if we conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, would unquestionably have found true at least a single aggravating factor had it been submitted to a jury. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) Although Lavender sharply criticizes Sandovals error analysis, we are bound by the decisions of the Supreme Court. (People v. Zichwic (2001) 94 Cal.App.4th 944, 952.)
Here, the court referenced several factors in aggravation, none found true by the jury. However, as to both the robbery and burglary counts there was undisputed evidence the crimes involved great violence, great bodily injury, and other acts disclosing a high degree of cruelty and callousness.
Defendants woke Norton at gunpoint, handcuffed him, beat him, bound his knees and ankles with duct tape, and taped him to a pillar. They used a Taser to force Norton to reveal the combination to his safe. Defendants poured gasoline over Norton, flicked a lighter on and off, and threatened to burn down his house. Norton suffered numerous abrasions, bruising, and lacerations at the hands of defendants.
The evidence at trial also revealed the crimes were carried out with planning and sophistication. After learning that Norton was growing large amounts of marijuana, Scarabello located his address on the Internet and obtained aerial photos of the property. The trio armed themselves, brought a Taser and duct tape, and obtained masks to obscure their features. Churchill and the trio staked out Nortons house prior to robbing it. After entering, the three systematically subdued and beat Norton, located his marijuana, loaded the stolen goods into Nortons truck and trailer, and stored them at Stevensons house.
Lavender argues it cannot be shown beyond a reasonable doubt that the jury would have found Norton particularly vulnerable. Lavender points to Nortons occupation as a hunting guide who had prior convictions for possession of brass knuckles and marijuana. Norton also had a loaded gun on his nightstand.
We disagree. The evidence revealed the trio woke Norton at gunpoint, beat him, bound him with duct tape, shot him with a Taser, and threatened him with gasoline and a lighter. Norton was alone during his ordeal; his roommates were gone. During the robbery, defendants pointed a gun at Nortons head and told him he was going to be killed.
Given the evidence at trial, the jury would have found the aggravating circumstances true beyond a reasonable doubt had they been presented. Therefore, any error under Cunningham was harmless.
DISPOSITION
The judgment is affirmed.
We concur:
MORRISON, J.
ROBIE, J.