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People v. Nourn

California Court of Appeals, Fourth District, First Division
Apr 27, 2009
No. D052426 (Cal. Ct. App. Apr. 27, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. NY NOURN, Defendant and Appellant. D052426 California Court of Appeal, Fourth District, First Division April 27, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD163772, Charles G. Rogers, Judge.

NARES, Acting P. J.

In 2003 a jury returned a verdict of first degree murder against Ny Nourn and found true a lying-in-wait special circumstance allegation. In May 2004 this court filed an unpublished decision (People v. Nourn (May 13, 2004, D041961)), affirming her murder conviction, but reversing the special circumstance finding based upon instructional error. Nourn thereafter filed a petition for writ of habeas corpus, which this court granted in December 2006, reversing her conviction based upon ineffective assistance of counsel in failing to investigate the existence of, and present evidence concerning, battered women's syndrome (BWS) (In re Nourn on Habeas Corpus (Dec. 14, 2006, D046347)).

In 2005 Evidence Code section 1107 was amended to use the term "intimate partner battering" to replace "battered women's syndrome," to reflect the fact a victim of such abuse can be either male or female. However, because the term "BWS" was used throughout these proceedings, and in our prior opinion in case No. D046347, we shall again use this term.

In September 2007 the San Diego County District Attorney filed a second amended information charging Nourn under Penal Code sections 187, subdivision (a) and 189 with one count of premeditated first degree murder (count 1) and under section 451, subdivision (d) with arson (count 2). The information also alleged, under section 190.2, subdivision (a)(15), the special circumstance allegation of lying in wait.

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

Prior to trial, the court granted Nourn's motion to dismiss the lying-in-wait special circumstance allegation. A jury trial commenced in November 2007, and after conclusion of the People's case, the court granted Nourn's motion for acquittal on the first degree murder charge. In December 2007 the jury found Nourn guilty of the lesser included offense of second degree murder and found her not guilty of arson.

The court sentenced Nourn to an indeterminate term of 15 years to life.

On appeal, Nourn asserts (1) following her acquittal on the first degree murder charge, the People violated double jeopardy principles by arguing facts underlying the count as to which she was acquitted; (2) the People presented a legally untenable theory of liability; and (3) there is no substantial evidence to support a conviction of implied malice second degree murder. We affirm.

FACTUAL BACKGROUND

A. People's Case

1. Discovery of body

In the predawn hours of December 23, 1998, a La Jolla resident heard an explosion and saw a fire on La Jolla Scenic Drive near Ardath Road. Firefighters responded to her 911 call and discovered a vehicle engulfed in flames. A body was in the front passenger seat. A forensic dentist identified the victim as David Stevens.

An autopsy revealed that Stevens had been shot twice in the head before his body was burned. One of the shots was fired from a distance of about one-half inch. Either of the gunshot wounds would have been fatal.

Police officers searched Stevens's apartment. The security system indicated that someone had "buzzed in" to his apartment at 3:05 a.m. on the day of his death. Nourn's telephone number was listed in Stevens's day planner. A call had been placed from Nourn's telephone to Stevens's apartment the morning of December 23. Numerous fingerprints identified as belonging to Nourn were found in Stevens's apartment. Her DNA was found on a mug in his apartment.

On the Monday following the murder, the employees at Perfect Match, where Stevens and Nourn worked, were informed of Stevens's death. Nourn began crying and ran from the room. She never returned and never picked up her final paycheck.

2. Nourn's confession

The case was unresolved for three years. However, in November 2001 Nourn contacted the San Diego Police Department and confessed her role in Stevens's murder. The following description of the events leading to the murder is from Nourn's transcribed confession.

In August 1998, when Nourn was 17 years old, she met Ronald Barker, then a 34-year-old married man with a child, through the Internet. Three days after they met online, they had a date and had sex.

Nourn's relationship with Barker continued through the Fall of 1998. In November 1998 Nourn began working at the Perfect Match dating service. She developed a friendly relationship with her boss, Stevens. Nourn liked Stevens and thought he was "real cute."

On the evening of December 22, Nourn went on a date with him. They went to Stevens's apartment and had sex.

After leaving Stevens's apartment that night, Nourn returned to her home. When she arrived, she saw Barker's car parked near her house. She became "nervous, . . . shaking because [she] knew . . . that [she] was in big trouble." She parked behind Barker's car and walked to it. Barker asked Nourn where she had been. At first she said she had been shopping at Wal-Mart. Barker did not believe her and Nourn admitted that she had "slept with [her] boss." Barker became angry and told her to get out of the car. Nourn said she was sorry and that it would never happen again. She then told Barker that Stevens coaxed her into having sex with him, and then changed her story, stating that he had raped her.

Barker replied, "I'm gonna kill him," and told Nourn she had been "violated" and was "used goods." He told Nourn to take him to Stevens's apartment so that he could confront him, and Nourn agreed to do so.

On their way to Stevens's apartment, Barker and Nourn stopped and had sex in the back seat of his car. Afterward, Barker suggested that he and Nourn should end their relationship. Nourn begged him not to do so, and he responded that the "[o]nly way you stay with me is if you kill David or I kill David." Nourn replied, "I do anything you say." Barker then stated that he needed to go to his house to get his gun, and Nourn followed him there.

Barker then told Nourn to call Stevens and tell him that she was stranded on the freeway. However, when Nourn called, Stevens did not answer. Barker and Nourn drove to Stevens's apartment.

They planned to have Nourn tell Stevens that Nourn's car had broken down and ask him for a ride to get help. Barker would follow in his vehicle and when he flashed his headlights, Nourn would have Stevens pull over. They would tell Stevens that Barker was Nourn's brother.

When they arrived at Stevens's apartment, Nourn called him on the intercom and told him she needed help with her car. When Stevens came out, he and Nourn left in his car and traveled eastbound on Highway 56. Barker followed in his own car.

Barker flashed his lights and Nourn told Stevens to pull over. She told Stevens that she thought the person following them was her brother. Nourn walked to Barker's car and he told her to have Stevens follow him. Nourn returned to Stevens's car and told him to follow Barker. They drove to a residential area and then stopped. Nourn introduced Barker to Stevens as her brother. They then all got into Stevens's car, with Barker in the back seat.

Barker directed Stevens to drive, on the pretense of looking for Nourn's car. Nourn did not say much and "just kept to [her]self." Barker then directed Stevens to pull over on Kearny Villa Road.

After Stevens pulled over, he asked, "Where's the car?" Barker grabbed Stevens by the neck and pointed the gun at his head. Barker said, "How does it feel to sleep with someone's girlfriend?" Stevens replied, "[D]on't do this," and Nourn said, "No, no." Barker shot Stevens in the head.

Barker pushed Stevens's body into the passenger's side of the car, told Nourn to get in the back, and drove away. Barker told Nourn, "You tell no one about this." Nourn asked what they were going to do next, and Barker replied, "We're gonna burn his body so we leave no evidence." They returned to Barker's car and drove off, with Barker driving Stevens's car and Nourn following in Barker's car. They stopped at a gas station near Barker's house and bought some gasoline, then drove to La Jolla Scenic Drive and parked. Barker poured gasoline into the car and onto Stevens's body, then set the car on fire. During the entire time, Nourn "just did what [Barker] told me."

They left in Barker's car. As Barker was driving Nourn home he said, "This is gonna be on the news. If any cops call you, say you don't know anything." The following day, Barker and Nourn went to a drive-in movie. Once there, Barker told Nourn, "You're not gonna tell anyone about this, right? You're mine forever and now that I've done this for you then you're clean as in your sin has gone away." Nourn told Barker that she loved him and they had sex in the back seat of the car. Barker told Nourn that if she told anyone, he would kill her. During the following three years, Barker and Nourn's relationship continued and neither told anyone about Stevens's murder. Nourn stated that she went along with the plan because she thought that Barker would kill her if she did not.

B. Defense Case

Attorney Marc Carlos testified that he represented Nourn in 2001. He left the case due to a conflict created by threats Barker made against him.

Two of Nourn's coworkers testified that in 2000-2001, they had seen Nourn come to work with bruising and other signs of physical abuse.

Martin Barajas met Barker while they were both in custody in 2002. Barker asked Barajas to kidnap and/or kill Nourn's family in the hopes it would force Nourn to take full responsibility for Stevens's murder. Barajas told his attorney about Barker's scheme because he thought Barker was "crazy" and that Nourn was in danger.

Nourn testified and denied that she wanted to see Stevens hurt or killed. She stated she liked Stevens very much. She believed Barker would have killed her if she refused to participate in his plot to murder Stevens. Nourn admitted Barker had never physically abused her in any way prior to Stevens's murder, although she stated Barker had slapped her one time on the night Stevens was killed.

Nourn testified that although she knew Barker had a gun and had threatened to kill Stevens, she believed he only intended to "confront" him. She believed Barker's death threats were directed at her, not Stevens.

Nourn admitted Barker had no idea where Stevens lived and only her assistance led Barker to him. Nourn admitted she was alone with Stevens several times as the plot unfolded. She acknowledged she had several opportunities to stop the murder, but did not warn Stevens or take any actions to prevent it because she was worried about her own safety.

After the murder, Nourn moved to Texas with Barker and his family. In December 1999 Nourn contacted police in Texas and stated she wanted to turn herself in as a runaway. However, in response to the police's inquiry, she denied she had been physically abused.

Three psychologists testified Nourn suffered from BWS before, during and after Stevens's murder. However, one psychologist admitted that at the time of the murder Nourn was not so subjugated by Barker that she did not feel free to defy him by dating Stevens.

DISCUSSION

I. DOUBLE JEOPARDY

Nourn asserts the prosecution violated double jeopardy principles by arguing facts underlying the first degree murder charge for which she had been acquitted. This contention is unavailing.

A. Background

At the close of the prosecution's case, defense counsel moved, under section 1118.1, for an acquittal on the first degree murder charge. However, the defense conceded a second degree murder charge was viable based upon an implied malice theory.

The court granted the motion to acquit on the first degree murder charge, finding the evidence demonstrated Nourn did not share the mental states of deliberation and premeditation with Barker:

"It can certainly be argued that if [Nourn] believed that [Barker] was as bad a guy as she said [s]he believed, then that might suggest that she shared his mental states of premeditation and deliberation. However, I do not find that to be the case. I find instead that, for purposes of this motion, [Nourn] did not believe that [Barker] would actually engage in the ultimate act of such enormity as the cold-blooded murder that he did. And I find as well that the circumstances of the killing, including the acts that she did to further it and to participate in it, do not constitute substantial evidence to the contrary. [¶] Now, the court has substantial, frankly, question as to whether she shared any intent to kill. I don't need to decide that, I believe, because of the concept of implied malice and second degree murder and because of the concept that [defense counsel] alluded to with respect to manslaughter, that it no longer necessarily requires an intent to kill." (Italics added.)

The court granted a judgment of acquittal "as to any form of first degree murder only. The other remaining charges will remain before the jury. And to the extent there was a motion for judgment of acquittal as to both, it is denied."

B. Analysis

During trial, a criminal defendant may move for acquittal on the ground of insufficient evidence of the charged crime. (§ 1118.1.) A statutory motion for acquittal "is an evidentiary motion going to the sufficiency of the evidence to sustain a conviction of the offense charged . . . ." (People v. Witt (1975) 53 Cal.App.3d 154, 163, overruled on another point in People v. Posey (2004) 32 Cal.4th 193, 205, fn. 5, 215.) "A defendant need not articulate the grounds for his motion for acquittal, and there is no requirement that the motion be made in a particular form." (People v. Cole (2004) 33 Cal.4th 1158, 1213.) " 'The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' " (People v. Stevens (2007) 41 Cal.4th 182, 200.)

When it grants such a motion without qualification, the trial court is, "in effect, directing entry of a judgment of acquittal as to the offense charged" in the affected count. (People v. Garcia (1985)166 Cal.App.3d 1056, 1067 ; see also, e.g., People v. Witt, supra, 53 Cal.App.3d at p. 163; People v. Moran (1973) 33 Cal.App.3d 724, 728.) On the other hand, the trial court may limit "the impact of the grant of a section 1118.1 motion." (People v. McElroy (1989) 208 Cal.App.3d 1415, 1424, overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Neither the constitutional bar against double jeopardy, nor any provision in "sections 1023 and 1118.2 . . . prevents the court from considering lesser included offenses in the same trial after a judgment of acquittal has been rendered as to the greater offense." (People v. Garcia, supra, at p. 1068.)

Here, as discussed, ante, the court, in granting an acquittal on the first degree murder charge, specifically limited its ruling to that charge. The court explicitly refused to enter judgment on the lesser offense of second degree murder and found that theory of liability remained. Hence, no double jeopardy principles were implicated by trial of the second degree murder charge.

In support of her double jeopardy claim, Nourn relies on the case Smith v. Massachusetts (2005) 543 U.S. 462 [125 S.Ct. 1129, 160 L.Ed.2d 914] (Smith). However, Smith is inapposite.

In Smith, the defendant moved for a finding of not guilty on a firearm possession charge at the conclusion of the prosecution's case. The court granted the motion, and the defense case proceeded on the remaining charges. After the defense rested, the prosecutor brought to the court's attention a case that showed the court's prior acquittal was legally incorrect. The court reversed it acquittal ruling and allowed the firearm-possession count to go to the jury. The jury thereafter convicted the defendant on that count. (Smith, supra, 543 U.S. at pp. 464-466.) The United States Supreme Court reversed, holding that double jeopardy principles precluded the court from reconsidering the court-ordered acquittal once the defense rested its case. (Id. at pp. 472-475.)

Here, by contrast, the court did not reconsider and reverse its acquittal ruling. Moreover, unlike in this case, the Smith court's original acquittal ruling was without qualification. Here, by contrast, the court specifically excluded second degree murder from its acquittal ruling. Thus, nothing in the Smith decision prohibits a trial court from limiting an acquittal ruling and allowing a lesser offense to proceed, as the court did in this case.

Nourn acknowledges that the same evidence used to support a first degree murder charge could properly be used to support an implied malice second degree murder conviction. However, Nourn asserts it was improper for the prosecution "to factually argue that she aided and abetted a premeditated murder for which she was acquitted." As we shall explain, post, this assertion misapprehends the law of implied malice murder and liability for aiding and abetting a murder.

Because we conclude no double jeopardy principles were implicated in this case, we need not reach Nourn's contention her counsel rendered ineffective assistance of counsel by failing to make a double jeopardy argument at trial.

II. PEOPLE'S THEORY OF LIABILITY

Nourn asserts that in granting her motion for acquittal of the first degree murder charge, the trial court found she had no knowledge Barker planned to kill the victim, and thus it was improper for the People to argue she shared Barker's intent to kill. Moreover, Nourn asserts Barker's specific intent to kill Stevens was incompatible with her conviction on an implied malice theory. These contentions are unavailing.

First, factually, Nourn is incorrect. In granting the motion for acquittal, the court did not rule there was no evidence Nourn shared Barker's intent to kill Stevens. Rather, the court only ruled that Nourn did not share his "mental states of premeditation and deliberation." The court questioned "whether she shared any intent to kill" (italics added), but expressly ruled it was not resolving that issue. The court ruled that "there could be a basis for an implied malice form of malice, even absent intent to kill," and the defense agreed with this proposition. Nowhere in the court's ruling did it find she had no knowledge Barker intended to kill Stevens. The court only found the evidence did not show she shared the same level of premeditation and deliberation Barker did so as to support a first degree murder conviction.

Further, Barker's specific intent to kill is not incompatible with Nourn's conviction for implied malice murder. Malice aforethought encompasses theories of both "express" and "implied" malice. (See People v. Swain (1996) 12 Cal.4th 593, 600.) Malice "is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (Ibid.; see also People v. Saille (1991) 54 Cal.3d 1103, 1114.) Malice is implied under one of at least two distinct standards: either " 'when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart' " (Swain, supra, at p. 600) or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. (Id. at p. 601.)

Here, the prosecution's theory was that Nourn knew Barker intended to kill Stevens, and she acted in conscious disregard of Stevens's life by leading Barker to the victim, luring him outside of his home on a pretext, and providing assistance to Barker both before and after the murder. That she did not share his premeditation and deliberation had no impact on her liability as an aider and abettor to second degree murder.

All persons concerned in the commission of a crime, whether they directly perpetrate it or aid and abet its commission, are liable as principals. (§ 31; People v. Calhoun (2007) 40 Cal.4th 398, 402.) An aider and abettor's liability is not dependent upon, or affected by, the disposition of the charges against the direct perpetrator. (People v. Garcia (2002) 28 Cal.4th 1166, 1173.)

Further, while the actual perpetrator must act with the requisite mental state for the charged offense, the aider and abettor must act with the knowledge of the perpetrator's purpose and with the intent or purpose of committing, encouraging or facilitating commission of the offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Where the charged offense is a specific intent crime, the aider and abettor must

" ' "share the specific intent of the perpetrator," ' " which means he or she " ' "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." ' " (Ibid.)Thus, aider and abettor liability does not require proof of the specific intent that is an element of the underlying offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.]" (Ibid.) "Proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus─. . ., (b) the aider and abettor's mens rea─knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus─conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225.)

Here, direct evidence of Nourn's mental state was presented in her confession to police, i.e., that she knew Barker intended to kill Stevens, and aided and abetted Barker's commission of that crime. When Barker suggested that he and Nourn should end their relationship, she begged him, "No, no, please I want to stay with you." Barker responded, "Only way you stay with me is if you kill David or I kill David." Nourn told him, "I do anything you say." Barker replied that they would need to go to his house so he could get his gun. As we shall discuss, post, this, along with other evidence, constitutes substantial evidence of Nourn's knowledge of Barker's intent to kill Stevens and her liability as an aider and abettor of that crime.

III. SUFFICIENCY OF THE EVIDENCE

In arguing there is insufficient evidence to support her conviction, Nourn again argues there is no evidence she knew Barker intended to kill Stevens. This contention is unavailing.

A. Standard of Review

"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence─evidence that is reasonable, credible and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

In making our determination, we focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) "[W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact." (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on "no hypothesis whatever is there sufficient substantial evidence to support [the jury's verdict]." (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Stewart, supra, at p. 790.)

B. Analysis

As discussed, ante, a conviction of second degree murder, based upon a theory of implied malice, requires proof the defendant acted with a conscious disregard of a known danger to human life. Thus, the jury could convict Nourn of second degree murder as an aider and abettor based upon evidence (1) Barker either intended to kill the victim or intended to shoot the victim; (2) Nourn acted to facilitate the commission of the offense; and (3) she did so with knowledge of Barker's purpose and the intent or purpose of committing, encouraging, or facilitating the commission of the offense. (People v. Perez, supra, 35 Cal.4th at p. 1225; People v. Campbell (1994) 25 Cal.App.4th 402, 411.)

Also as discussed, ante, there is substantial evidence, based upon her statements to police, that Nourn knew Barker intended to kill Stevens and participated in his plan. Barker was only able to complete the crime with Nourn's assistance. She led him to Stevens, and lured Stevens out of his home. She also acknowledged she was alone with Stevens for significant periods of time prior to the murder and had numerous opportunities to prevent the crime. However, Nourn failed to warn Stevens or take any other action to prevent the murder. She deliberately acted in conscious disregard to Stevens's life and was intimately involved in facilitating, encouraging and instigating each stage of the events leading up to the murder. Her actions thus provide substantial evidence she aided the murder of Stevens. (People v. Campbell, supra, 25 Cal.App.4th at p. 411.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: McDONALD, J., McINTYRE, J.


Summaries of

People v. Nourn

California Court of Appeals, Fourth District, First Division
Apr 27, 2009
No. D052426 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Nourn

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NY NOURN, Defendant and Appellant.

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 27, 2009

Citations

No. D052426 (Cal. Ct. App. Apr. 27, 2009)