Opinion
E059345
11-25-2014
THE PEOPLE, Plaintiff and Respondent, v. SHARIFF TAYLOR, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FSB1205378) OPINION APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Shariff Taylor appeals from a judgment of conviction for first degree murder (Pen. Code, § 187, subd. (a)) and forcible rape. (§ 261, subd. (a)(2).) Defendant waived his right to a jury trial on the prior conviction allegations, and the court found that he had suffered a prior serious felony conviction in Nevada in 1996. (§ 667, subd. (a)(1).) The trial court imposed the required term of 25 years to life for the murder, doubled due to the prior "strike" conviction. (§ 667, subd. (e)(1).) For the rape, the trial court imposed the upper term of eight years, also doubled, to run consecutively. It then imposed a five-year enhancement for the prior serious felony conviction, for a total term of 71 years to life.
All subsequent statutory references are to the Penal Code.
On this appeal defendant raises several arguments with respect to his sentencing. We affirm.
STATEMENT OF FACTS
The victim, Tamara Tingle, rented a room in a home owned by Susan Meader. Defendant and his girlfriend Stacy Bruemmer also rented a room in the residence. The victim had multiple sclerosis and used a cane to walk.
Both the victim and a third tenant, Meader's son, complained to Meader about defendant and his girlfriend. The son complained about missing shoes and that defendant kept taking the communal television from the living room to the room shared by him and Stacy Bruemmer. The victim told Meader that toiletries and medications had been stolen from the bathroom she shared with defendant and Stacey Bruemmer. As a result, Meader decided to evict the pair and served defendant with a notice to quit. Meader told defendant that she was "getting too many complaints."
Meader had planned to return to the residence in three days to take the victim shopping. However, when she did so, the victim did not answer her knocks. Defendant and his girlfriend came out and told Meader that the victim had gone to visit a friend. About two weeks later, Meader returned because she was concerned about the victim. This time she opened the locked door to the victim's room and saw her purse. The victim never left home without her purse.
The morning after the eviction notice was served, a homeless woman heard a car pull up to a nearby dumpster, where it remained for several minutes. Shortly thereafter the woman went to put trash in the dumpster and discovered the victim's body. The victim had been strangled and smothered to death; there were contusions and abrasions on her face and her upper front teeth had been knocked out. The results of a "sex kit" administration were consistent with sexual assault.
The most damning evidence came from Stacy Bruemmer in the form of statements she made to a detective investigating the death. (At trial, she recanted and testified that she had lied.) The gist of her evidence was that she had been alone in the room she shared with defendant when she heard a scream. In the hall she found defendant and the victim, both with their pants down, and defendant was having sex with the victim. The victim asked defendant why he was doing this to her, and defendant replied "Because you have a nice ass."
Defendant told Ms. Bruemmer to go back into their room, which she did. After about 15 minutes she emerged, and saw defendant and the victim in the latter's bedroom. The victim was facedown on the bed with her legs dangling over the edge, while defendant was on top of her with an arm around her neck, apparently choking her.
The video of the interview was played for the jury. The transcript reflects that Ms. Bruemmer told the detective that during the rape, the victim appeared to look at her imploringly, but Ms. Bruemmer told her "I'm sorry I can't help you or I'll get it next." She also told the detective that the victim asked defendant "please stop." At defendant's directive she later accompanied him as he pushed a trash can, into which he had shoved the victim's body, to the dumpster where it was found. When she asked him why he had killed the victim, defendant told her that he had to kill her so she would not report the rape, but also commented that he did not like "snitches." Susan Meader's son also testified that on the day defendant was served with the eviction notice, he heard defendant apparently talking to himself about hating "snitches."
Defendant raises two specific challenges to the sentence imposed as described above. First, he argues that section 654 prohibits the imposition of separate terms for the murder and rape; second, he notes that the trial court failed to specify reasons for imposing consecutive terms. We find no basis for reversal and affirm.
DISCUSSION
A.
Section 654 provides that 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." (§ 654.) Whether multiple punishment is prohibited depends on whether there was an "indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591), which in turn depends on whether the defendant harbored a single criminal intent. (People v. Lopez (2011) 198 Cal.App.4th 698, 717.) Only if all offenses were incident to one criminal objective is multiple punishment improper. (Ibid.) Otherwise, if there are multiple criminal intents, multiple punishment is permissible.
When challenged, multiple sentences will be upheld if there is substantial evidence to support the finding, express or implied, that the defendant harbored multiple criminal objectives. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Here, there is clearly ample evidence to this effect. It is readily inferable that defendant raped the victim out of perverted sexual lust—"Because you have a nice ass." The evidence also supports the conclusion that the killing was motivated by a separate intent. The victim did not die in a struggle as she was being raped on the floor of the hallway. She had been moved to her bedroom and was deliberately choked to death. Defendant expressed hatred of "snitches" both to Stacy Bruemmer and in the hearing of Susan Meader's son. The victim was an obvious candidate for such dislike, as defendant probably assumed her complaints were responsible for his eviction. Furthermore, any motive of concealing his crime by killing the victim would represent a separate intent. (See People v. Saffle (1992) 4 Cal.App.4th 434, 439-440 [following sexual assault, defendant detains victim at knifepoint and threatens to kill her and her children if she reports the crime. Held, multiple punishment appropriate].) Even if defendant intended all along to kill the victim, the trial court could reasonably have found that he had the additional motive or motives of sexual gratification and humiliation of the victim. (See People v. Ibarra (2007) 151 Cal.App.4th 1145, 1152-1153 [defendant drags estranged wife around business premises first by her hair and then by a belt around her neck; properly punished both for attempted murder [intent to kill] and corporal injury to a spouse [intent to torture or humiliate]].)
Defendant could well have assumed that Stacy Bruemmer would not incriminate him and that the victim's disappearance or even death would remain unexplained.
Defendant contends, and the People concede, that where a murder conviction is based on the theory of felony murder, the defendant may not be separately punished for the predicate felony. (People v. Montes (2014) 58 Cal.4th 809, 898.) However, in this case the jury was instructed both on felony murder and premeditated murder. Defendant asserts that "It is overwhelmingly probable that the jurors based the verdict . . . on the felony murder doctrine" because fewer fact-finding steps are necessary for the latter compared to an ultimate finding of premeditation and deliberation. But this is mere speculation, and in our view the jury could have found either or both theories controlling with similar facility.
Defendant argues that he should not be subject to multiple punishment when the jury might have relied on the felony murder theory. The cases he cites involve the situation in which the case was sent to the jury on two or more theories, one of which was legally either insupportable or erroneous. Thus, in People v. Lewis (2008) 43 Cal.4th 415 (Lewis), overruled in part on other grounds in People v. Black (2014) 58 Cal.4th 912, 919, the jury was given three options for convicting the defendant of first degree murder, two of which were legally impermissible due to Bruton-Aranda error; in People v. Morgan (2007) 42 Cal.4th 593 (Morgan), the prosecutor gave the jury two options under which it could find that a kidnapping victim had been moved a "substantial distance," one of which was legally incorrect. Here, however, the jury was properly instructed and both theories were supported by substantial evidence. We do not share defendant's pessimism with respect to a jury's ability or willingness to address the issues of premeditation; we are confident that the verdict rested "at least in part" on a theory permitting multiple punishment. (Lewis at p. 466.)
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476].)
In Lewis the court was able to find from the evidence that the jury's verdict "rested at least in part" on a valid theory, and therefore affirmed. (Lewis, supra, 43 Cal.4th at p. 466.) In Morgan, it was unable to reach any such conclusion, and reversed.
The People cite People v. Osband (1996) 13 Cal.4th 622, 730-731 (Osband) for the supposed proposition that "because it was unknown whether the defendant was found guilty of first degree murder on a theory of felony murder or premeditation or deliberation, section 654 was not violated." We do not read Osband as authority for the broad proposition. The court clearly held that because substantial evidence supported the "more than one objective" finding, section 654 was not violated. (Osband at p. 731.) However, it did not decide whether double jeopardy or any other statutory or constitutional principle prohibited separate punishment because the jury may have found the defendant guilty on a theory of felony murder. In that respect the court merely commented that the court had stayed all determinate terms pending execution of the death penalty, so that "[t]here is no risk of multiple punishments, because when the sentence for murder is carried out there will be no further punishment." (Ibid.)
B.
In imposing a consecutive sentence for the rape conviction, the trial court did not place its reasons on the record. The court merely informed the parties that it had reviewed the probation report, and the prosecutor read a "victim impact statement" into the record. When both sides declined to address the probation officer's recommendation, the court proceeded immediately to routine findings and then pronounced sentence on the murder conviction, followed by the statement "Consecutive to the above is Count 2, forcible rape . . . ."
For example, with respect to the use of a motor vehicle, ability to pay costs, DNA samples, etc.
Tacitly acknowledging the error in failing to state reasons, the People argue that the error was waived or any appellate objection forfeited because no objection was made below. Defendant disputes this, and also responds that if the objection was waived, he suffered ineffective assistance of counsel. In our view the easiest way to dispose of the issue is to find any error harmless and, as a result, no remediable ineffective assistance.
The court also failed to state reasons for selecting the upper term and for choosing to impose a full consecutive term under section 667.6. However, our analysis applies to the omission as a whole. The Rules of Court make clear that the same factors can support both the choice of consecutive sentencing and that of a full consecutive term under Penal Code section 667.6, subdivision (d). (Cal. Rules of Court, rule 4.426.)
The probation report reviewed by the court contained no facts in mitigation and several in aggravation. Clearly applicable are criteria relating to the vulnerability of the victim, the great violence of the crimes, separate acts of violence or threatened violence, and the fact that defendant, in conversations recorded from jail, attempted (successfully) to persuade Stacy Bruemmer not to testify against him. Defendant also clearly represented a danger to the public. Furthermore, in choosing to impose separate punishment sentences in the first place, the trial court obviously found, as we have discussed above, that the crimes and their objectives were predominantly independent of each other. (See Cal. Rules of Court, rules 4.421, 4.425.)
Defendant suggests that the trial court may have believed that it was required to impose consecutive sentences, basing this on a reference in the probation report to section 667.6 which did not clarify that consecutive sentences are only mandatory when the defendant has either committed violent sex offenses against two or more victims, or against one victim on separate occasions. There is nothing else in the record to support the conclusion that the trial court was unfamiliar with the details of the statute; we note also that the probation officer's report fully discusses the other bases for imposing consecutive sentencing, which would have been unnecessary had section 667.6, subdivision (d), applied.
Subdivision (c) of the statute requires full, separate, and consecutive terms in the multiple victims/one victim, multiple occasions situations. Subdivision (d) makes full consecutive terms discretionary if the defendant is convicted of multiple crimes against one victim and at least one is a "violent sex crime," as defined in subdivision (e).
A trial court's error in failing to elucidate its reasons for a sentence choice is only reversible if there is a reasonable probability that a different result would be reached on remand. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1688.) We find no such probability here. Hence, it follows also that trial counsel's failure to insist on a statement of reasons was not prejudicial to defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: KING
J.
MILLER
J.