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People v. Hudson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 29, 2012
A127048 (Cal. Ct. App. Feb. 29, 2012)

Opinion

A127048

02-29-2012

THE PEOPLE, Plaintiff and Respondent, v. DARRYL WESTLEY HUDSON et al., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 05-081148-9)

Codefendants Darryl Hudson and Montrell Hall were convicted after jury trials of murder with special circumstances, robbery of two victims, assault with a firearm and burglary arising from a home invasion robbery. The trial court sentenced both defendants to life in prison without the possibility of parole (LWOP) for the special circumstances murder, and imposed determinate sentences for the other convictions.

Defendant Hudson argues his convictions must be reversed because the trial court improperly discharged a sworn juror, and failed to inquire into another juror's possible bias. Both defendants contend the LWOP sentences imposed constitute cruel and unusual punishment, and the court erred in not staying sentences on three of the offenses for which they were convicted. We agree in part with the latter contention, and will modify the judgments to strike the concurrent sentences imposed for robbery and burglary, and to instead stay sentence on those counts. We affirm the judgments in all other respects.

I. BACKGROUND

Hall and Hudson were charged by information with the murder of Rex Farrance (Pen. Code, § 187; count one), the first degree residential robberies of Rex and Lenore Farrance (§ 211/212.5, subd. (a); counts two and three), assault with a firearm upon Lenore Farrance (§ 245, subd. (a)(2); count four), and the first degree residential burglary of the Farrances' home (§ 459/460, subd. (a); count five). Count one was accompanied by the special circumstances allegations the murder was committed in the commission and attempted commission of robbery and in the commission and attempted commission of burglary (§ 190.2, subd. (a)(17)). Each of the five counts included gun use enhancement allegations against Hall and Hudson (§ 12022, subd. (a)(1)), and the residential robbery charge included an allegation the defendants voluntarily acted in concert with two or more other persons (§ 213, subd. (a)(1)(A)).

All statutory references are to the Penal Code unless otherwise specified.

The information originally charged codefendant Cleothius Amos with the same offenses and enhancements as Hall and Hudson. During jury selection, Amos pleaded guilty to voluntary manslaughter, admitted a principal was armed with a firearm, agreed to testify truthfully, and was promised a sentence of 16 years 4 months. The information was amended at that time to reflect Amos's plea.

Following a jury trial in May and June 2009, Hudson was found guilty of all charges, but the jury deadlocked and the court declared a mistrial as to Hall. Hall was retried in September and October 2009. The second jury found him guilty of all charges, and found the special circumstance and firearm enhancement allegations true.

The trial court sentenced both defendants to life without the possibility of parole for the special circumstances murder with firearm use of Rex Farrance. Hudson was given an aggregate determinate sentence of eight years for counts two through five with enhancements, and Hall received 11 years for these offenses and enhancements. Both defendants timely appealed.

Hudson's eight-year determinate term consisted of the midterm of six years for the robbery of Rex, plus a one-year gun use enhancement for that conviction, and a consecutive term of one year (one-third the midterm) for the assault on Lenore. Hudson also received the following concurrent terms: six years for the robbery of Lenore, a one-year gun enhancement for that robbery, a midterm sentence of four years for the burglary and a one-year sentence for the burglary gun enhancement.

Hall's 11-year determinate term consisted of the aggravated term of nine years for the robbery of Rex, plus a one-year gun use enhancement for that conviction, and a consecutive term of one year (one-third the midterm) for the assault on Lenore. Hall also received the following concurrent terms: nine years for the robbery of Lenore, a one-year gun enhancement for that robbery, a midterm sentence of four years for the burglary and a one-year sentence for the burglary gun enhancement.

Facts

Rex Farrance and his wife, Lenore Farrance, were living at 86 Argosy Court in Pittsburg in January 2007. Some months before that time, the Farrances discovered their 20-year-old son, Sterling, was growing marijuana in his closet in the home. Sterling explained to his parents he had a medical prescription to use and grow marijuana for himself. Rex decided to assist Sterling, and worked with him to expand the growing operation into the house's unused attic. Sterling was also assisted by his childhood friend, Michael Mikulik, who also had a medical marijuana prescription.

For the sake of clarity and meaning no disrespect, when two or more family members referred to herein bear the same surname, we will refer to them by their first names.

Sterling moved out of the Argosy Court residence in October 2006, but he remained involved in the growing operation with Rex, as did Mikulik to a lesser extent. According to Sterling, they had gone through three or four grow-and-harvest cycles in the attic, with the last one occurring less than a week before his father was killed. Sterling estimated each harvest would yield approximately one pound of marijuana at the most, which would have had a street value of $3,500 to $4,500 at that time. At the time his father was killed, they had plants growing in the closet and attic, and harvested marijuana drying in the garage. Sterling thought the amount in the home at that time was worth "probably less" than $4,000. According to Sterling, who testified under a grant of immunity, none of the marijuana grown in the home was sold. He and Mikulik smoked some of it themselves, and gave the rest away to friends. Neither Sterling nor Mikulik believed Rex sold any of the marijuana. Mikulik had the impression Rex, who worked as a senior technical editor for PC World magazine, viewed the growing operation as an enjoyable hobby.

On January 9, 2007, Lenore was bedridden while recovering from foot surgery the day before. Rex stayed home from work to take care of her. Sterling and Mikulik came by at 4:00 p.m. or 5:00 p.m. that day, but both had left by later that evening. In the evening, Lenore heard a loud bang followed by her dog barking. Then Rex burst into the bedroom saying, "Some guys are breaking in." He went to his side of bed, and reached under the bed where he kept handguns locked in a safe. Within seconds, he was overtaken by three men who followed him into the room.

In the first trial, Lenore testified three men entered the bedroom and another was in the hall. In the second trial, she testified four men entered and two went back out into the hall. Amos, who was one of the men who entered the home, testified there were four of them, but he denied knowing the fourth man's name.

The intruders all wore black clothes and dark masks, but Lenore could see their skin above the gloves they wore and at the eye holes of some of their masks. Based on that, as well as from their size, body type, and voices, Lenore testified she could tell all four were Black males. All of the men in the room had guns. They demanded money and threatened to kill her if none was found. As one intruder held Rex at gunpoint, another grabbed Lenore by her throat and nightgown, pulled her off the bed onto her injured foot, and said, "Where is the money, bitch?" After searching unsuccessfully for an envelope of emergency money in her husband's top dresser drawer, she was struck on the back of the head and collapsed to the floor, bleeding from the wound to her head. She hear Rex gasp, then saw in "slow motion" the barrel of the gun held on him turn red and the fabric of his shirt "splay open" as he was shot in the chest. She believed Rex gasped because he saw blood coming out of her head. The intruders ran and were gone. Lenore was able to reach Rex where he lay in the bedroom doorway with his legs in the bedroom. A nurse by profession, Lenore tried to do CPR while she called 911 on the bedside phone. The call was received at 9:11 p.m. and police responded to the scene at 9:14 p.m.

Rex was taken by ambulance to John Muir Medical Center where he was pronounced dead at 9:59 p.m. An autopsy revealed Rex died of a single gunshot wound to his right chest. Based on the shape and location of the entrance and exit wounds, it appeared the victim was shot from above while on his knees or buttocks, by an assailant standing a few feet away. Police found an expended .22-caliber bullet on the carpet at the entrance to the master bedroom of the Argosy Court residence.

At the crime scene, investigators found the front door splintered, several bags of marijuana in the hallway, and a pervasive odor of marijuana throughout the residence. The master bedroom had been ransacked and the mattress had been pulled off of the bed. Officers found bags containing trimmed marijuana in the bedroom. An envelope containing $700 in currency was found in a dresser drawer. A narcotics officer found mature marijuana plants hanging in the garage, and 75 immature plants in the attic, as well as 11 glass jars of marijuana in the master bedroom. Interviews with Lenore and Sterling established that the gun safe under the bed, containing four handguns registered to Rex, was missing from the home.

On January 15, 2007, following pursuit of a fleeing vehicle in Bay Point, police arrested the vehicle's occupants and recovered a .22-caliber handgun that had been tossed from it during the pursuit. The car was registered to Cleothius Amos, and the vehicle's driver and passenger were Amos's brothers. Two .22-caliber bullets were found in the front seat. A firearms expert who examined the handgun later reported his "100 percent certain" opinion it had fired the bullet found at the scene of Rex Farrance's murder. Amos, who was arrested on January 21, 2007 after a police chase in Sacramento, initially denied any knowledge of the Farrance robbery-murder. At the end of May 2007, the police investigating the robbery-murder learned Hall and Hudson had been with Amos in Sacramento on January 21, and Amos's girlfriend, Sabrina Bagsby, had been a passenger in the vehicle he was driving when he was arrested on that date.

On June 1, a Browning .22-caliber semiautomatic pistol registered to Rex Farrance was recovered when the police assisted Bagsby in retrieving her possessions from the home of her ex-boyfriend, Omar Zuniga. Five days later, police interviewed Jalil Aldridge, who had obtained the Browning .22 from Hudson and arranged for its sale to Zuniga. Aldridge confirmed Zuniga's statement that Amos, Hudson, and Hall were involved in the Farrance robbery-murder. When Amos was interviewed again in September 2007, he confessed his involvement in the events of January 9, and implicated Hall and Hudson. Although he initially portrayed the events falsely as a marijuana purchase gone bad rather than a robbery—a scenario his interrogators proposed to get him to admit his involvement—he provided information and leads that enabled the police to identify the other defendants and gather evidence of their involvement.

Eventually, Amos provided the following account of the events of January 9: Amos was called that day by Hall about doing a "weed and money lick," which Hall said would be "easy." Amos was not surprised about the call because Hall and Hudson knew Amos had done robberies before. Amos was with Sabrina Bagsby at the time. He dropped her off and drove to a house on Harbor Street in Pittsburg to meet with Hall and Hudson and another man he did not know, at about 7:00 or 8:00 o'clock that evening, to plan the robbery. Amos asked Hall questions about the robbery and Hall answered them.

"Lick" is slang for a robbery.

The house was leased to a friend of Hall's and Hudson's named James High. High's mother, Linda High, was a cosigner on the lease. Hudson lived at the Harbor Street house and Hall sometimes stayed there. James High saw Hudson many times with a small .22-caliber pistol or "deuce deuce" that he routinely carried.

Amos and Hall, armed with automatics, Hudson, armed with a .22-caliber revolver, and the fourth man, unarmed, left the Harbor Street house dressed in dark clothes and carrying masks. Following Hall's directions, Amos drove them in his Ford Probe to 86 Argosy Court, where Hall and Hudson entered first and headed toward the back of the house, followed by Amos and the fourth man after they searched to make sure no else was in the house. In the bedroom, Amos saw a woman on the bed. He heard Hall or Hudson say someone else was in the house and threaten to kill the woman if she did not tell them where the other person was. At that point, a man came up from behind the bed with his hands up and the fourth man began to hit him with his fists. Amos began searching the room for things to take, and picked up a wicker basket with 25 or 30 glass jars of marijuana and left the room, grabbing a bag of loose marijuana he carried with the wicker basket to his car. Amos put the marijuana in the trunk and went back into the house. When he went back in, the others were searching the bedroom and had flipped up the mattress on the bed. Amos left to search the front of the house. After about a minute he heard a shot. He ran to the car, and Hall and the fourth man came right out behind him. Then Hudson came out carrying a gun safe. Hudson ran back inside once more and came back out with two laptop computers. As soon as Hudson got into the car, Amos drove off. There was an argument in the car. Hall told Hudson he was stupid for shooting the man, and Hudson replied he had only shot him in the leg.

James High told detectives that Hudson, Hall, and Amos returned to the Harbor Street house on January 9 carrying bags of marijuana and a gray metal box, excited because they had "hit a lick and come up big." They watched a news story about the crime on television and were "laughing and acting jovial" at first. When they heard the man had been killed, they seemed shocked and quieted down. Hudson used the television's rewind function to play the news report over and over again.

Rex Farrance's gun safe was ultimately recovered from a backyard behind the Harbor Street house. A laptop computer Linda High had sold to a third person on behalf of Hudson for $250 or $350 was also identified as one of Rex's computers taken from the house. Amos testified Hall sold a half-pound of the marijuana the evening of the robbery and gave each of them $450 of the proceeds.

II. DISCUSSION

Defendant Hudson argues the trial court abused its discretion at the first trial when it (1) discharged a sworn juror without substantial evidence he committed misconduct or was unable to perform his duties, and (2) failed to inquire into the reasons for a juror's request the jury be allowed to exit the courtroom before audience members. Defendants Hudson and Hall each contend the LWOP sentences imposed constitute cruel and unusual punishment in violation of the state and federal Constitutions, and the court committed sentencing error by imposing additional, unstayed sentences for the robbery of Rex Farrance (count two), the assault on Lenore (count four), and the burglary (count five). A. Discharge of Sworn Juror

1. Facts

Juror No. 5/67 was initially called as part of a panel of 80 prospective jurors on the first day of the first trial, May 26, 2009. A second panel was called on May 27. Members of the panels not seeking hardships were asked to return on May 28. Juror No. 5/67 filled out a questionnaire on May 26, and was asked to return on May 28.

Jury voir dire took place on May 28 and 29. The first mention of Juror No. 5/67 occurred when the court stated to him, "I'm going to come back to you because I know you told us at the beginning that you might know people. So I am going to skip you for just a minute, okay?" Juror No. 5/67 was thereafter questioned out of the presence of the other jurors about his report, apparently made on May 26, that he recognized defendant Hudson.

Juror No. 5/67 reported his son played basketball at Pittsburg High School with one of the defendants who he remembered as "Darryl." He stated he never knew Darryl's last name until he had heard his last name in the courtroom a few days earlier. He told the court he had mentioned it to his wife when he was outside the courtroom with her during a recess in the jury selection process. At first, Juror No. 5/67 said he had decided to go back in the courtroom and tell the bailiff he recognized Darryl but later stated it was his wife who sent him back inside. He explained he helped coach the freshman basketball team when his son was a freshman. Darryl, who was two years older than the juror's son, was on the varsity team, which practiced separately. Juror No. 5/67 could not remember the first names of any of the other varsity players. Defendant Hudson's attorney asked Juror No. 5/67 if there was "[a]nything in that relationship that you described that would make you less than fair and impartial if chosen as a juror." Juror No. 5/67 answered in the negative.

Juror No. 5/67 was one of the 12 jurors later sworn in on May 29. After the end of the session on Friday, May 29, Juror No. 9 sent the following note to the court: "On Tuesday [May 26] while you were interviewing the people with hardship requests, I believe it was [Juror No. 5/67] who said he knew Daryl [sic] and when he left he told his wife if he could get him off he could [sic]. This may or may not have been said with true intent." On the next court day, Monday, June 1, the court had discussions with Juror No. 9 and with Juror No. 5/67.

Juror No. 9 reported she was sitting outside the courtroom, near Juror No. 5/67 and his wife, when they started discussing the case: "[H]e said that he recognized Darryl and he didn't know what he had been charged with. And I believe his wife made a phone call and said that it was Darryl and they just didn't know what he was charged with. And then as they were leaving, he made the comment that I wrote down. [¶] . . . [¶] He obviously didn't know the seriousness of the charge. But it was just like, Hey, if I can get him off, I will. [¶] . . . [¶] It wasn't like a serious, I want to get on this case so that I can get him off. It was just the fact that he knew him and said that."

The court also questioned Juror No. 5/67. He stated he came out of the courtroom during a break on May 26 and spoke to his wife who was waiting for him outside the courtroom. He reported he told her: "That look [sic] like one of the kids that my son played basketball with, you know." He said his wife told him he had to go back into the courtroom and tell them he knew the defendant. When the trial court asked Juror No. 5/67 if he "might have said something to the effect of that if you could get Darryl off you would," he responded by repeating the word "no" 11 times, according to the transcript. He also said, "I don't know him that well—why would I say something like that?" The court bailiff was also questioned, and confirmed Juror No. 5/67 had come up to him and said, "I know him," pointing to defendant Hudson.

The prosecutor argued Juror No. 5/67 should be removed. Hudson's trial counsel objected to his removal. The trial court observed that Juror No. 9's allegation concerning Juror No. 5/67 was "exceptionally serious" and, having questioned both jurors in open court, found Juror No. 9 to be "very, very credible." The court found Juror No. 9 had no ulterior motive to come forward, and had done so reluctantly, feeling she had a duty to do so. The court noted Juror No. 5/67 had himself corroborated Juror No. 9's statement that he and his wife had spoken about the defendant outside the courtroom on May 26. The court specifically found Juror No. 5/67 was not credible, noting he first adamantly denied saying anything about getting Darryl off but when the court asked him if he could have said it in jest, he paused and seemed to be "clearly evaluating" whether he should admit he said it in jest. The court found Juror No. 5/67 had actual bias and excused him from the jury.

2. Relevant Law

The decision whether to retain or discharge a sworn juror rests within the sound discretion of the trial court. (§ 1089; In re Devlin (1956) 139 Cal.App.2d 810, 813, overruled on another ground in Larios v. Superior Court (1979) 24 Cal.3d 324, 333.) "A sitting juror's actual bias, which would have supported a challenge for cause, renders him 'unable to perform his duty' and thus subject to discharge and substitution." (People v. Keenan (1988) 46 Cal.3d 478, 532.)

Section 1089 states in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate . . . ." (Italics added.)

"Although decisions to investigate juror misconduct and to discharge a juror are matters within the trial court's discretion [citation], . . . 'a somewhat stronger showing' than is typical for abuse of discretion review must be made to support such decisions on appeal. [Citation.] . . . [T]he basis for a juror's disqualification must appear on the record as a 'demonstrable reality.' This standard involves 'a more comprehensive and less deferential review' than simply determining whether any substantial evidence in the record supports the trial court's decision. [Citation.] It must appear 'that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established.' [Citation.] However, in applying the demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is whether 'the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' " (People v. Lomax (2010) 49 Cal. 4th 530, 589-590 (Lomax).) Few cases have found abuse of discretion in the discharge of a juror for bias. (People v. Halsey (1993) 12 Cal.App. 4th 885, 892.)

3. Analysis

The trial court made the basis for its decision to discharge Juror No. 5/67 clear on the record. The court believed Juror No. 9 that Juror No. 5/67 had told his wife outside of the courtroom he would try to get Hudson off if he could, and it found Juror No. 5/67 was being dishonest when he denied having made that statement. The court explained its reasons for making those determinations of credibility and fact in some detail. We are not free to reweigh the evidence and arrive at a different conclusion than the trial court did about whether Juror No. 5/67 made the statement attributed to him. (Lomax, supra, 49 Cal. 4th at p. 590; People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) Moreover, Hudson essentially concedes, as he must, that the statement the court found Juror No. 5/67 made would show bias justifying the juror's replacement unless it was said entirely in jest.

Contrary to Hudson's suggestion, the trial court was not required to accept Juror No. 9's view that Juror No. 5/67 might not have been serious when he said he would try to get Hudson off. Juror No. 9's original note said the statement "may or may not have been said with true intent." (Italics added.) In other words, the note expressed doubt, not certainty about whether he was serious or not. Like most people, Juror No. 9 might have had trouble believing anyone could be serious about doing such a thing. The fact she wrote and submitted the note rather than ignoring the incident is evidence she entertained serious doubt about Juror No. 5/67's intent. Nor do we do find anything in Juror No. 9's testimony to indicate certainty on her part that he made the statement facetiously. She testified Juror No. 5/67 was not laughing when he made the statement, but beyond that she had no way of knowing for certain whether he meant what he said. Juror No. 5/67 was a complete stranger to her and she had no experience with him to draw upon in making such a determination. On this record, the court had to reach its own conclusion about how serious Juror No. 5/67 was when he made the statement. Juror No. 5/67's lack of credibility compounded the problem. It called all of his statements to the court into question, including his statements minimizing the extent of his relationship with Hudson. In these circumstances, the court was entitled to conclude the risk of actual bias was simply too great to allow Juror No. 5/67 to sit on the jury. In our view, the trial court's conclusion was correct and fully supported by the evidence on which it actually relied. (Lomax, supra, 49 Cal.4th at p. 590.) B. Failure to Conduct Juror Inquiry

1. Facts

On the morning of the 10th day of trial the court informed the parties it had received the following note from Juror No. 9: "Is it possible for the jury to leave the courtroom 30-120 seconds before the audience? I know I would feel more at ease if we could. No one has said anything to me or made any gestures or anything like that. There are just so many spectators and with the [sic] type of case, I would feel safer with a head start at lunch breaks and at the end of the day."

The defense jointly moved that the court inquire into the juror's concerns and expressed trepidation about her motivations for submitting the note. Counsel for defendant Hall noted audience members had conducted themselves well throughout the trial. Counsel reminded the court this was the same juror who reported overhearing Juror No. 5/67's statement, and stated, "I'd like to know what's going on with her." The prosecution took the position the defense was "reading way too much into this," pointed out it was not unusual to permit jurors to exit before audience members, and this type of request did not support a further inquiry of the juror.

The court rejected the defense request, explaining its reasons in relevant part as follows: "[M]y job now that she is a sworn juror is not to probe or to inquire into any things that we would have wanted to elicit on voir dire. . . . And her note doesn't give me any reason to question her. She's explained herself fully. [¶] Every time we get a note from a juror, for example, wanting to know evidence, . . . I don't question them to say does this mean you're leaning one way or the other. Their thoughts are their own. At this point I'm not going to question her further, but I will honor her request and have the audience stay while the jury exits."

2. Relevant Law

"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] . . . [¶] . . . [A] hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case." (People v. Ray (1996) 13 Cal.4th 313, 343.) Not every incident involving a juror's conduct requires or warrants further investigation. (People v. Cleveland (2001) 25 Cal. 4th 466, 478.) A mere supposition of misconduct does not require investigation. (People v. Marshall (1996) 13 Cal.4th 799, 864.)

3. Analysis

The trial court acted within its discretion in declining to conduct an inquiry in response to Juror No. 9's request. Nothing in the juror's request was so unusual or indicative of possible bias or misconduct that an inquiry was required. Defense counsel articulated no more than an inchoate fear something unspecified might be "going on" with this juror, based merely on her having twice sought the court's attention in 10 days of trial. There was not enough here to warrant interrupting the trial in order to put this juror under a microscope for making a simple and relatively routine request. Moreover, appellate counsel points to no evidence in the record suggesting Juror No. 9 did not fully and fairly discharge her duties throughout the trial. We find no error. C. LWOP Sentences

Defendants were convicted of murder with special circumstances finding that the murder was committed in the course of robbery or attempted robbery and burglary or attempted burglary. Section 190.2, subdivision (a) provides the penalty for murder with a finding of one or more of these special circumstances is death or imprisonment for life without the possibility of parole. (See § 190.2, subds. (a)(17)(A), (G).) Since the prosecutor did not seek the death penalty in this case, the LWOP sentences imposed were mandated by statute and the trial court had no discretion to impose any other sentence. (People v. Noble (1981) 126 Cal.App.3d 1011, 1016.)

Defendants contend their sentences are unconstitutional because the trial court had no discretion to consider their individual culpabilities. Alternatively, defendants maintain their LWOP sentences are unconstitutional because the sentences are grossly disproportionate to the offenses committed and/or the individual culpabilities of the defendants in derogation of the proscription of cruel or unusual punishment in article I, section 17 of the California Constitution and the Eighth Amendment to the United States Constitution. For the reasons discussed below, we reject both challenges.

With regard to defendants' first contention, the identical argument has already been rejected by the California Supreme Court in People v. Zimmerman (1984) 36 Cal.3d 154, 157-160. We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendants point out Zimmerman was based in part on the Governor's power to commute sentences, a power they maintain has not been exercised to commute an LWOP sentence in many years. However, even if the record before us was adequate to verify the premise of defendants' argument, Auto Equity Sales does not permit us to decide the Supreme Court would reach a different result today than it did in 1984. "Although the California Supreme Court is free to overrule its own prior decisions, the doctrine of stare decisis compels lower court tribunals to follow the Supreme Court whatever reason the intermediate tribunals might have for not wishing to do so. [Citations.] There is no exception for Supreme Court cases of ancient vintage." (Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1048, fn. 3.)

Regarding the disproportionality of their sentences, defendants cite People v. Dillon (1983) 34 Cal.3d 441 (Dillon) in which the Supreme Court found the penalty for felony murder disproportionate to Dillon's culpability and reduced the degree of his crime and resulting sentence. (Id. at p. 489.) Dillon, 17 years old at the time of the offense, had raided a marijuana field with some teenage friends and shot and killed one of the marijuana growers when he heard shots and panicked as the man approached him with a shotgun. (Id. at pp. 451-452, 482-483.) Defendants cite Dillon for the proposition that when considering whether a particular punishment fits a particular offender, a court must ask whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Id. at p. 479.) Dillon also emphasized the court looks to the nature of the offense, as well as the characteristics of the offender, " 'with particular regard to the degree of danger both present to society.' " (Ibid.) Considering all of those factors, the Supreme Court held in Dillon that the punishment of the defendant as a first degree murderer, under the circumstances of the case, violated article I, section 17 of the state Constitution. (Dillon, at p. 489.)

First, with regard to their levels of culpability for the crime, there is no meaningful distinction between Hudson and Hall in this case. Hudson was the actual shooter, but the evidence shows Hall was a major participant. He enlisted Amos for the crime. He answered Amos's questions about the robbery, he knew the location of the Farrances' residence, and he gave Amos directions for driving to it. He armed himself with an automatic weapon for the robbery. On the way to Argosy Court, Hall told the others they were going to find a lot of money in the house. As they got out of the car, it was Hall who directed that he and Hudson would go in first, and Amos and the fourth man would follow them at a distance. Hall had his automatic weapon out when the men confronted the Farrances in their bedroom. After Rex was shot, Hall cautioned Amos to walk rather than run to the car, apparently to avoid drawing anyone's attention. Once they had driven off after the robbery and killing, it was Hall who directed Amos to drive them to his girlfriend's house rather than back to Harbor Street.

The evidence thus shows Hall was a major participant in the robbery and burglary of the Farrances, if not the person who principally conceived and directed it. That Hall may not have intended for Rex to be killed in the course of the robbery, and thought Hudson was "stupid" for shooting him, is not conclusive in reviewing his offense for proportionality purposes. Hall himself was armed with an automatic weapon that night and could not have failed to appreciate the grave risk of death created when armed and masked men burst through a front door and start threatening and beating the people who live inside. The jurors were instructed that if Hall was not the actual shooter they could not make a special circumstances finding against him unless they determined beyond a reasonable doubt he either aided and abetted the actor in the commission of a murder with intent to kill or acted with reckless indifference to human life and as a major participant in the commission of a robbery or burglary which resulted in the death of a human being. (See CALJIC No. 8.80.1; see also People v. Estrada (1995) 11 Cal.4th 568, 581 ["reckless indifference to human life" means the defendant appreciated his or her conduct created a grave risk of death].) By finding the special circumstances allegation true against Hall, the jury confirmed the evidence of Hall's major participation in the robbery and reckless indifference to human life were convincing beyond a reasonable doubt.

"The Constitution does not forbid even the death penalty . . . for a person who was not the actual killer and did not actually intend to kill, but who was a major participant in the underlying felony, acting with reckless indifference to human life." (People v. Mora (1995) 39 Cal.App.4th 607, 616 [reversing trial court's refusal to impose LWOP sentence on defendant who helped plan and participated in a robbery resulting in the death of one victim even though he was not the actual shooter].) Thus, we cannot deem Hall's LWOP sentence cruel or unusual based on the nature of his offense. (Id. at p. 618.) Since Hudson was the actual shooter, the same is true a fortiori of his offense. (See People v. Loustaunau (1986) 181 Cal.App.3d 163, 177.) We note further Hudson shot the victim in his chest from close range even though Rex posed no threat to him and was not resisting. Hall and Hudson both left the victim to die, and Hudson even returned to the house to rummage for more things to steal as Rex lay dying. This was a cold and callous crime on the part of both defendants, and demonstrates a willingness to inflict gratuitous cruelty and violence that presents a danger to society.

Hall and Hudson were both 22 years old at the time of the crime. Hall was arrested at age 16 for auto theft and hit-and-run, resulting in misdemeanor charges sustained by the court. He was placed on juvenile electronic monitoring and violated his probation twice before a new arrest for armed robbery. He was found unfit for the juvenile system and remanded to the adult system where he was sentenced to three years in state prison in 2001. As an adult, Hall had three prior felony convictions, all for robbery. As of sentencing in this case, Hall and Hudson had an open case for jointly robbing a restaurant and one of its patrons using handguns two weeks after the Farrance murder. At the time of the crime in this case, Hudson was on felony probation for two counts of unlawful sexual intercourse with a 14-year-old girl.

The level of individual culpability and responsibility involved in this case is significantly greater for both defendants than that described in Dillon. Hall has a record of prior and subsequent robberies and other crimes against persons. Although Hudson did not have a prior record of crimes involving violence or threat of violence, he was the one who shot and killed Rex. Two weeks after the murder, both men apparently engaged in another armed robbery together. Given the nature of their conviction offenses, and the dangerousness of the offenders as shown by their other conduct before and after the Farrance murder, both defendants present a significant danger to society.

We therefore do not find the LWOP sentences received by either defendant so disproportionate to their personal culpabilities in the death of Rex Farrance as to violate the state or federal constitutional proscriptions against cruel or unusual punishment. D. Imposition of Additional Sentences

Defendants contend the court erred in imposing separate sentences for the robbery of Rex Farrance charged in count two, the assault with a firearm on Lenore in count four, and the burglary of the Farrance home in count five. Since the finding of first degree murder was based upon the conclusion the murder occurred in the commission of a robbery and burglary, defendants maintain the imposition of additional sentences for robbery and burglary in counts two and five constituted a multiple punishment prohibited by section 654. Further, because the trial court imposed sentence for the robbery of Lenore, defendants argue it was improper to impose an additional sentence for the assault on Lenore in count four since that assault was part of an indivisible course of conduct which had robbery as its sole objective. We agree in part, and will modify the judgments to (1) strike the concurrent sentences imposed on counts three and five; and (2) stay sentence on these counts instead, pursuant to section 654.

Section 654, subdivision (a) provides in relevant part as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
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We agree it was improper under section 654 to impose unstayed sentences for both robbery convictions or for the burglary conviction, as the trial court did here, since robbery and burglary were the special circumstances found by the jury and used as a basis for defendants' LWOP sentences. The correct procedure would have been to stay one of the robbery sentences and the burglary sentence. (See People v. Deloza (1998) 18 Cal.4th 585, 591-592.) We will therefore modify the judgments to stay sentence on counts for which concurrent sentences were imposed—counts three and five—since this conforms most closely to the sentencing decision made by the trial court while avoiding multiple punishment for purposes of section 654.

With respect to count four, defendants argue the assault on Lenore was part and parcel of the robbery since she was struck when she said she could not find the money in the dresser. Our Supreme Court has explained the application of section 654 in such circumstances as follows: "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) On the other hand, if the defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) Whether the acts of which a defendant has been convicted were incident to independent objectives is primarily a factual determination. (People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75.)

In our view, hitting Lenore on the head with a gun was a gratuitous act of violence, unnecessary to the robbery of her and her husband. The Farrances were being held at gunpoint and threatened with death. Lenore was in pain from her surgery and offering no resistance. Striking Lenore on the head and knocking her to the ground inflicted pain and punishment, but it did not advance the robbery. The trial court specifically found "there was absolutely no reason for [Lenore] to be smashed on the head with a gun in order to accomplish what the defendants went in there . . . to accomplish." Substantial evidence supports that determination. We therefore decline to stay the one-year consecutive sentences imposed on the assault count.

III. DISPOSITION

The judgments against Hall and Hudson are modified to strike the concurrent sentences imposed on each defendant for robbery on count three and burglary on count five, and to instead stay sentence on these counts under section 654. As so modified, the judgments are affirmed. The trial court is directed to prepare amended abstracts of judgment and to forward copies of the amended abstracts to the California Department of Corrections and Rehabilitation.

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Margulies, J.
We concur:

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Marchiano, P.J.

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Banke, J.


Summaries of

People v. Hudson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 29, 2012
A127048 (Cal. Ct. App. Feb. 29, 2012)
Case details for

People v. Hudson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DARRYL WESTLEY HUDSON et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Feb 29, 2012

Citations

A127048 (Cal. Ct. App. Feb. 29, 2012)