Opinion
A108688
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. SHANNON GUILLORY, Defendant and Appellant.
NOT TO BE PUBLISHED
Appellant Shannon Guillory was convicted of first degree murder, robbery, kidnapping for purposes of robbery, kidnapping for purposes of carjacking, simple kidnapping, carjacking, and child endangerment based upon having her baby present during the commission of the other crimes. (Pen. Code, §§ 187, 207, subd. (a), 209, subd. (b), 209.5, subd. (a), 211, 212.5, subd. (a), 215, 273a, subd. (a).) She contends: (1) her Miranda rights were violated; (2) her prison sentence of 25 years to life constitutes cruel and unusual punishment; (3) the conviction for simple kidnapping must be reversed; and (4) her conviction for child endangerment must be reversed, for lack of a proper showing of the corpus delicti of that crime.
All subsequent statutory references are to the Penal Code.
We agree that the conviction for simple kidnapping must be reversed, but affirm the remainder of the judgment of conviction.
I. FACTS AND PROCEDURAL HISTORY
This case arises from appellants participation in the murder, robbery, and kidnapping of appellants friend Calvin Curtis. The issues raised on appeal do not require an exhaustive recitation of the facts of the offense, but we will summarize the facts briefly in order to provide background to the legal issues presented.
We have seen this case before. In Guillory v. Superior Court (2003) 31 Cal.4th 168, 172, the California Supreme Court affirmed our previous ruling that appellant, a minor, could be indicted for these crimes.
Appellant and Calvin Curtis had been friends and sexual partners for several years in the past. One evening in January of 2001, appellant and her boyfriend Josh Burton decided to lure Curtis over to appellants home, and attack and rob him. Appellant contacted Curtis late in the evening of January 26, 2001, and invited him over to her mothers apartment, where she was staying while her mother was out. Josh hid in the kitchen with a knife.
Curtis walked into the apartment, greeted appellant, and began hugging her. Josh then attacked Curtis from behind, put the knife to his neck, and put Curtis into a chokehold. Josh choked Curtis for about a minute, while Curtis was gagging, and then told appellant to use a telephone extension cord to tie Curtis hands. Josh and appellant removed money, car keys, and other items from Curtis, and they put on latex gloves in order to avoid leaving fingerprints.
Then appellant and Josh left the apartment with the bound Curtis, and shoved him into the back of his motor vehicle, a white Ford Expedition. They planned to drop off appellants baby, who was also with them, at her grandmothers house, and then rob Curtis of his money, other items, and car, and dump Curtis somewhere.
Josh drove while appellant was in the back with the bound Curtis. Curtis tried to escape, so appellant stabbed him in the head, and hit him in the knee with a club. She also hit Curtis in the head with a bottle of baby formula that she had brought along with the baby, which caused baby formula to fly out all over the back of the car. According to appellants statement to the police, Curtis kicked at the babys car seat during the struggle, and knocked the baby over.
Appellant told Josh that Curtis was struggling, so Josh pulled over, put the baby in the front seat, and began hitting Curtis with his fists, drawing blood. Curtis begged for his life and offered them more money, but appellant did not say anything.
Josh told appellant to strangle Curtis, using a cord wrapped around his neck, but appellant could not do it. Then Josh strangled Curtis, while appellant watched as Curtiss eyes rolled back, and he died.
There was blood, money, and baby formula all over the inside of the car, and appellants latex gloves had come off during the struggle, so she feared that her fingerprints would be on the car. Appellant and Josh pushed Curtiss body out of the car, then drove to the Montalvin Manor area, and tried to clean the car with bleach. Josh took some CDs and a Dreamcast video game device from the car, to sell them, and they dumped the rest of the victims belongings into a recycling bin. They left the victims car in the Montalvin area, near a park. Josh gave appellant $60, which she later used to get drunk and buy some milk for the baby.
Early in the morning of January 27, 2001, about 4:00 a.m. or 5:00 a.m., Joshs acquaintance Sherlitha Miller was sleeping at her home when she and her friend Tamika Winslow were awakened by someone knocking at the door. It was Josh and appellant, with the baby. Josh and appellant looked wild, as if they had just been in a fight, and appellants hair was all messed up. They said they had been in a fight and needed a ride somewhere. Miller declined to give them a ride, but agreed to babysit the baby for awhile, and she did so while Josh and appellant left for a few hours.
Later in the morning, around 7:00 a.m. or 8:00 a.m., appellant and Josh came back for the baby. They had a large bag with a video game, some CDs, and other items they wanted to sell. Miller bought the Dreamcast video game device for $30. Miller and Winslow saw Josh again on the next day, January 28, when Josh drove the women to the Montalvin Manor area and showed them a parked white Ford Expedition vehicle that had belonged to the victim. Miller then went to the Richmond Police Department to tell the police that someone had been murdered.
By this time, Curtiss body had been discovered independently by the police, on the previous day. As a result of information provided by Miller and Winslow, the police obtained the names of Josh and appellant as the suspected murderers.
On January 29, the police arrested Josh and interviewed him. Later that day, the police went to appellants apartment. There was a box of disposable gloves, and some bottles of bleach, in the apartment, and appellant was arrested there when she arrived.
At trial, appellant presented evidence from Dr. Melissa Farley and other professionals, showing that appellant had a very difficult and abused childhood; she had been present when her mother stabbed her father, and she had been shuttled around between foster homes and other placements where she behaved inappropriately and violently. Appellant had also described her participation in the killing of Curtis to Dr. Farley. Appellant told Farley that her baby was present and was knocked over during the struggle in Curtiss vehicle.
Appellant was convicted by the jury of first degree murder, first degree robbery, kidnapping for purposes of robbery, kidnapping for purposes of carjacking, simple kidnapping, carjacking, and child endangerment, based upon having the baby present during the commission of the crimes. (§§ 187, 207, subd. (a), 209, subd. (b), 209.5, subd. (a), 211, 212.5, subd. (a), 215, 273a, subd. (a).) The jury found to be not true a charged special circumstance alleging that the murder had occurred in the course of kidnapping. A mistrial was declared as to other special circumstance allegations.
The trial court sentenced appellant to a term of 25 years to life on the first degree murder conviction, and imposed, but then stayed concurrent terms on the other counts.
II. DISCUSSION
A. APPELLANTS MIRANDA RIGHTS WERE NOT VIOLATED.
Appellant first contends the judgment of conviction must be reversed because her Miranda rights were violated in the interview and statements she gave to the police. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) She contends that despite an implied waiver of her Miranda rights, she later "reclaimed" those rights by asking to see her mother, and therefore the trial court should have granted her motion to suppress those statements. In a related contention, she claims her trial counsel was ineffective in presenting the motion to suppress. We agree with the trial court that there was no violation of Miranda, and therefore appellants motion to suppress was properly denied.
The police explained to appellant her Miranda rights. She was asked if she understood each of them. The detective asked appellant "Having those rights in mind, do you wish to talk to me?" Her reply was "[y]ou forgot to read me [n]umber 2." The detective explained that it was optional and said, "Its up to you." Appellant responded "[w]hatever."
Well into the interview, appellant asked the detective if she could see her mother. She was told that was not possible at the moment, and she continued the interview without protest, still denying involvement.
Later, appellant asked to speak to officer Barry, a policeman she knew from past experiences. Officer Barry responded to the interview and encouraged appellant "to do the right thing." She then continued the interview, and later admitted she had been involved in the murder, providing details of the kidnapping, robbery, and strangulation of the victim, and admitting that her baby had been present and had been knocked over during the struggle in the victims motor vehicle.
In reviewing the trial courts ruling that found no violation of appellants rights under Miranda, supra, 384 U.S. 436, we must accept the trial courts express or implied factual findings if supported by substantial evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248.) However, relevant legal issues are reviewed independently in light of the entire record, based on the characteristics and details of the interrogation. (People v. Benson (1990) 52 Cal.3d 754, 779.) In conducting this independent review, "we . . . `give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence." (People v. Jennings (1988) 46 Cal.3d 963, 979, quoting Miller v. Fenton (1985) 474 U.S. 104, 112; accord, People v. Kelly (1990) 51 Cal.3d 931, 947; People v. Wash (1993) 6 Cal.4th 215, 236.)
Here, the police explained appellants Miranda rights to her, and she waived them by continuing the interview. Appellant however contends that her brief request, during the interview, to speak with her mother, could constitute an assertion of her Miranda rights, because she was technically still a minor, aged 17, at the time of the crime and interrogation. A request by a minor to speak with a parent is one factor to be considered, in the totality of the circumstances, when deciding whether a Miranda violation has occurred. (See People v. Lewis (2001) 26 Cal.4th 334, 383.) Appellant also contends her trial counsel was ineffective for failing to more forcefully and specifically present this legal issue regarding the request to see her mother to the trial court.
As previously observed, appellant listened to her Miranda rights, with which she was already familiar from prior police contacts. She indicated she understood them, and waived them by continuing the interview with the officers. At a point well into the interview, an officer left the room for a moment, and appellant then asked the remaining officer if she could see her mother. The officer asked what good that would do, and told appellant that it could not be arranged at the moment. Appellant then continued the interview, eventually calling in an officer she knew, Officer Barry, to give her advice, and later confessing to involvement in the murder.
The trial court found no Miranda violation on these facts. The trial courts ruling in this regard is amply supported by People v. Hector (2000) 83 Cal.App.4th 228, 234-237 (Hector), in which the appellate court observed that a minors request to speak to a parent is only one factor to be considered in the totality of the circumstances, and does not require an automatic end to questioning.
In the present case as in Hector, the defendant was a 17-year-old murder suspect who had numerous prior contacts with law enforcement, and fully understood the Miranda rights in issue. The suspect waived those rights and gave statements to the police. During the course of the interview, the suspect asked to speak to the suspects mother, but was told she could not be contacted at present. The interview continued without protest or invocation of rights by the suspect, and the suspect later made incriminating statements. (Hector, supra, 83 Cal.App.4th at pp. 232, 236.) The Hector court held that there was no Miranda violation on these facts, because on the totality of the circumstances, the suspect had not invoked Miranda rights or sought to end the interview. (Id. at pp. 236-237.)
Appellant does not dispute that Hector states the applicable law, and she does not properly distinguish Hector on its facts.
We agree with the trial court that on the totality of the circumstances presented here, no Miranda violation occurred. Appellant was 17 years old and unusually worldly, having been involved in numerous prior police contacts, and fully understanding her Miranda rights from prior investigations, interviews, and waivers. She never asserted a desire not to speak to the officers. At one point she did briefly mention a desire to see or speak with her mother, but in the totality of the circumstances this does not appear to be an invocation of her Miranda rights; rather, she continued the interview without protest, and continued to deny involvement. On the totality of these circumstances, we agree with the trial court that there was no Miranda violation. (Hector, supra, 83 Cal.App.4th at pp. 236-237.)
In light of this conclusion, we also reject appellants related claim that her trial counsel was ineffective for failing to assert more strongly that appellants Miranda rights were violated when the interview continued after she asked to see her mother.
The standard we use to evaluate claims of this nature is well settled. A party who contends they received ineffective assistance has the burden of proving that (1) trial counsels performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Furthermore, an appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: "`[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected." (People v. Wilson (1992) 3 Cal.4th 926, 936 (Wilson), quoting People v. Pope (1979) 23 Cal.3d 412, 426.)
In the present case, defense counsel did present the Miranda issue to the court for the courts ruling, and did refer to appellants request to see her mother in support of suppression. Appellate counsel now suggests the request to see the mother should have been highlighted more strongly in trial counsels presentation. However, trial counsel may well have had tactical reasons for presenting the issue in this way, without overemphasizing the request to see the mother, especially in light of the very unhelpful case law presented in Hector, supra, 83 Cal.App.4th at pages 236-237. In any event, trial counsel cannot fairly be blamed for the adverse result, which was in accord with applicable law. (See Hector, supra, at p. 237.) Appellant thus has not shown ineffective assistance of resulting prejudice. (See Wilson, supra, 3 Cal.4th at p. 936.)
B. APPELLANTS PRISON SENTENCE DID NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.
Appellant next contends that her prison sentence of 25 years to life constitutes cruel and unusual punishment. We reject this contention.
The legal principles we apply to appellants constitutional claim are also well settled. "A sentence may violate the state constitutional ban on cruel and unusual punishment (Cal. Const., art. I, § 17) if `". . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Dillon, supra, [(1983)] 34 Cal.3d 441, 478, quoting In re Lynch, supra, [(1972)] 8 Cal.3d 410, 424.) [¶] In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. (People v. Dillon, supra, 34 Cal.3d 441, 479; In re Lynch, supra, 8 Cal.3d 410, 429-438.) First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether `the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d 441, 479.) Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions." (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.)
"`Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty "out of all proportion to the offense" [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment. (In re Lynch (1972) 8 Cal.3d 410, 423-424 [105 Cal.Rptr. 217, 503 P.2d 921].) `Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislatures sole discretion. (People v. Macias (1982) 137 Cal.App.3d 465, 475 .)" (People v. Lewis (1993) 21 Cal.App.4th 243, 251.)
"`Only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances, do the courts denounce it as unusual. [Citation.]" (People v. Lewis, supra, at p. 251.)
"Our Supreme Court has emphasized `the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned "unless their unconstitutionality clearly, positively, and unmistakably appears." (People v. Wingo (1975) 14 Cal.3d 169, 174 [121 Cal.Rptr. 97, 534 P.2d 1001], fn. omitted.)" (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
In the present case the crimes in issue are obviously very serious, and include a first degree murder, which is the most severely punished crime in California, and other comparable jurisdictions. Appellant was very much involved in the crimes and the violent acts by which they were perpetrated. Appellants motive for these premeditated crimes was apparently financial gain. None of these circumstances suggest the punishment was inappropriate. (See People v. Lewis, supra, 21 Cal.App.4th at p. 251.)
Appellant was young, age 17 at the time, and she had a long history of criminal offenses. Although appellant had a very tumultuous and unfortunate childhood, that fact alone does not render the punishment imposed here unconstitutional, in light of the great seriousness and heinousness of the crimes, the high degree of appellants involvement, and her own extensive prior history as an offender. The punishment imposed in the present case therefore was not unconstitutional. (See People v. Lewis, supra, 21 Cal.App.4th at p. 251; People v. Demirdjian (2006) 144 Cal.App.4th 10, 16, rev. denied [Two consecutive sentences of 25 years to life were not unconstitutionally cruel and unconstitutional punishment for a minor who committed two murders.]; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19 [sentences of 50 years to life imposed on minors not cruel and unusual].)
For the same reasons, we reject appellants suggestion that the sentence violated the prohibition against cruel and unusual punishment contained in the federal Constitution. (See Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 583-585 [sentence of life without parole imposed on minor not unconstitutional under federal standards].)
C. THE CONVICTION FOR SIMPLE KIDNAPPING MUST BE REVERSED.
Appellant contends her conviction for simple kidnapping cannot stand, because she was also convicted of kidnapping for purposes of robbery. We conclude the conviction for simple kidnapping must be reversed, because it is a lesser included offense of the kidnapping for robbery conviction. (See People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Appellant suggests the simple kidnapping conviction should not simply be reversed, and she should actually be acquitted of the simple kidnapping. There is no proper basis for such a remedy here. Appellant was found guilty by the jury of simple kidnapping, and there is no infirmity in that verdict. The reason the simple kidnapping must be reversed is solely because appellant was also convicted of kidnapping for robbery, and the less serious simple kidnapping offense therefore merged as a matter of law into the more serious kidnapping for robbery. The proper remedy in such circumstances is to simply reverse the less serious conviction. (See People v. Pearson (1986) 42 Cal.3d 351, 355 (Pearson).)
In her reply brief on appeal, appellant refers to language drawn from CALJIC No. 17.03, which could have instructed the jury that these crimes were alternatives, and that "`if you find the defendant guilty of one, you must find him not guilty of the other . . . ." However, in the present appeal the issue is not whether the crimes were true alternatives, but instead the issue is whether the conviction on the greater offense required reversal of the lesser conviction. (See Pearson, supra, 42 Cal.3d at p. 355.)
D. THE CHILD ENDANGERMENT CONVICTION WAS PROPERLY SUPPORTED BY THE EVIDENCE.
Finally, appellant contends that the evidence does not provide proper support for the child endangerment conviction, because she claims the evidence does not show adequate proof of the corpus delicti of child endangerment, separate from appellants own statements. We reject this contention, because the evidence at trial did properly show the corpus delicti of the child endangerment offense.
In every criminal prosecution, the People have the burden of proving the corpus delicti of the crime by evidence independent of the defendants extrajudicial inculpatory statements or admissions. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez); People v. Ochoa (1998) 19 Cal.4th 353, 450.) "The independent proof [of corpus delicti] may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence `of every physical act constituting an element of an offense, so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendants extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Alvarez, supra, at p. 1171, italics added.)
Section 273a, subdivision (a), which defines the crime of felony child endangerment, provides in relevant part: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, . . . having the care or custody of any child . . . , willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished . . . ."
Appellant in her reply brief concedes that having the baby present with her during the course of a kidnapping, robbery, and murder could be considered as proper evidence of child endangerment, but she insists there was insufficient evidence apart from her own statements that the baby was with her during the murder, so as to show the corpus delicti of the child endangerment crime. Appellant now suggests the baby might have been left with a babysitter somewhere at the time of the murder, and could have been picked up by appellant in the short period of time between the murder and her appearance with the baby at the home of their acquaintance, Sherlitha Miller, around 4:00 or 5:00 in the morning.
However, in the present case there was no evidence at all that the baby was with a babysitter on the night of the murder. Instead, the evidence, quite apart from appellants statements, showed that appellant, her boyfriend, and her baby appeared at the home of an acquaintance in the early hours of the morning, shortly after the murder occurred. Appellant and her boyfriend looked as if they had just been in a fight. They begged for a ride, and when that was not forthcoming, asked for someone to babysit the child while they went elsewhere.
The evidence also showed that the body of a murder victim was found, and the motor vehicle owned by the victim was located. The vehicle contained obvious evidence of a violent bloody struggle, and spilled baby formula powder was spread all over the inside of the car.
Thus, the evidence showed a violent murder had occurred, which had involved a struggle, scattering the babys formula around the inside of the vehicle; then appellant and the baby arrived shortly after the murder at the home of an acquaintance, with appellant looking as if she had just been in a fight, and asking Miller to babysit the baby. It was reasonable for the jury to conclude from this independent evidence that the baby, as well as the baby formula, must have been with appellant in the vehicle at the time of the kidnapping and murder, so that appellants own statements could be considered in determining whether she had engaged in child endangerment. (Alvarez, supra, 27 Cal.4th at p. 1171.) Appellants own statements showed that the baby was with her during the course of the crimes, and that the baby was in fact knocked over during the struggle in the victims vehicle. Appellants conduct thus endangered the child, and the evidence properly supports the jurys verdict in this regard. (Ibid.)
III. DISPOSITION
The conviction for simple kidnapping is reversed. In all other respects, the judgment of conviction is affirmed.
We concur.
JONES, P. J.
GEMELLO, J.