Opinion
C082210
11-07-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID BURNHART, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F00184)
A jury heard the harrowing, terrifying testimony of a real estate agent who had been threatened by defendant David Burnhart at gunpoint in a model home, stripped from the waist down, and handcuffed to the clothes rod in a secluded bedroom as well as the testimony of defendant that he had forgotten he had a gun and handcuffs hooked to his pants which, unintentionally, frightened his victim, his denial that he had threatened her with the gun, and his insistence that he did not intend to rape, rob, or assault her. Rejecting defendant's testimony, the jury convicted defendant of kidnapping to commit robbery, kidnapping to commit rape, assault with intent to commit rape, false imprisonment, criminal threats, possession of a firearm by a felon, and various enhancements. In a meritless challenge to the sufficiency of the evidence, defendant ignores the fundamental principles limiting the scope of appellate review. The Attorney General concedes three sentencing errors and we reject the remaining sentencing error defendant asserts.
I
SUFFICIENCY OF THE EVIDENCE
To avoid duplication, we integrate the facts into the sufficiency of the evidence analysis, mindful that we must infer all facts the jurors could reasonably deduce from the evidence in favor of the jury's verdict. (People v. Osband (1996) 13 Cal.4th 622, 690.) The victim's testimony provides ample evidence that defendant intended to rob, rape, and assault her and, when coupled with the testimony of the two erosion control workers, security guard, and police officers, the evidence against defendant is overwhelming. But we must also review the sufficiency of the prosecution's evidence in light of the entire record, including defendant's testimony. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) To be substantial, the evidence must be reasonable, credible, and of solid value; the verdict may not be based on speculation. (People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Raley (1992) 2 Cal.4th 870, 891.)
The Prosecution's Case
The victim was the only KB Home employee manning the sales office on January 8, 2015. She left briefly in the afternoon to take care of company business at another site but received a call from defendant while she was gone inquiring when she would return. Defendant, a construction worker with a long felony record, was at the sales office when she returned and asked to see the three model homes. He told her his wife would be joining him. The victim allowed defendant to tour the homes alone.
When he returned, defendant told the victim one of the homes had a leak. She asked to see the leak while they waited for defendant's wife. Just as they entered a single-story home, defendant pointed his gun at her and said, "I'm sorry, you don't have a leak," and locked the door. Then he told her, "Don't think about screaming. Don't think about yelling or I'll shoot you." Defendant put on blue latex gloves and told her that she "better have a lot of fucking money."
Defendant ordered the victim to go into a bedroom and put her purse down on the nightstand. He asked her who she had called and when she said no one, he stated, "You better not be lying to me." He repeatedly told her not to do anything stupid or he would shoot her. He demanded that she get down on her knees and then he handcuffed her behind her back.
Defendant grabbed the victim by her arm, led her into the den, and ordered her to sit on the couch and to remove her boots. Since the victim was unable to take off the boots while handcuffed, defendant took off her boots and socks. He asked her whether there were security cameras and, when she replied there were not, he told her she better not be lying to him. He grabbed a napkin from the kitchen explaining to the victim, "We're going to need that."
Defendant directed the victim into the master bedroom where he spotted the closet and told her, "This is where you're gonna go." He ordered her to take off her pants which she could not do since she remained handcuffed. He pulled off her pants and underwear, unhooked the handcuffs from one hand and handcuffed her hands back together over the closet rod. She hung from the rod naked from the waist down. She told defendant her keys were in her brown bag. He gagged her with the napkin, warning once again, "Don't try anything. Don't even think about screaming or I'll shoot you." Defendant left the room.
Defendant returned and asked the victim if she had another set of keys because he was unable to open her car. She gave him instructions on how to open the door. He left again.
When he returned this time, he told the victim they were going for a ride and she should put on the robe hanging in the closet. He grabbed all of her clothing but, when he opened the door, he saw that a security guard had arrived. Frustrated and angry, he told the victim, "Fuck, I shouldn't have to deal with this shit." He ordered the victim back into the closet and he handcuffed her again. He went out and made small talk with the security guard.
Defendant went back into the model home and told the victim they were going to leave. He took off her handcuffs and ordered her to put on her pants. He threatened, "We're going to leave. Don't try anything. Don't even talk to the security guard. Don't say anything. I'll shoot you. I'll shoot him. He's stupid. He's nobody." Defendant opened the front door, but as soon as he walked through it, the victim, while still inside, shut and locked the door behind him. Defendant glared at her through the window of the door and said, "That was a bad move."
Defendant started his truck, left it running, and retrieved the victim's brown bag from her car. As he drove away, he stared at the victim with a very angry expression. The victim ran outside shouting at the security guard, "Call 911. That man has a gun. We need to get out of here." The victim was screaming and crying and shouted, "He's going to kill us." She ran for the security guard's car, directed him to a nearby WalMart, and waited for the police to arrive.
The victim accompanied the police back to the model homes. She could not locate her brown bag or her underwear or socks.
Following an extensive investigation of cell phone records and car registrations, the police identified defendant as the assailant. The victim identified him in a photographic lineup. He was located at a mobile home park in Modesto and arrested. The police confiscated a loaded .25-caliber semiautomatic handgun in defendant's car and the victim stated that the gun looked the same as the one he used during the crimes. The police also found handcuffs and a cell phone battery compatible with the victim's phone, but incompatible with his.
Two workers were performing erosion control at the new home site when defendant drove up in his red truck with a sticker reading "Handyman Dave." Defendant asked the workers about their jobs and how long they were going to be there. After the victim returned to the model homes, defendant yelled to the workers, "When are you guys going to leave?" A little later he added, "you guys are milking it." One of them responded, "We're out of here." They left at 3:50 p.m.
A security guard arrived five minutes later. He did not see anyone in the sales office. As he walked by the model homes, he saw defendant and asked him if he had seen the sales agent. Defendant responded, "She just got out of the site with somebody for lunch, and she'll return in 45 minutes."
The Defense
Defendant testified. The prosecution did not cross-examine him. No other witnesses were called on his behalf.
Defendant admitted to many of the lesser included offenses including false imprisonment and robbery. He admitted he was a felon in possession of a gun and he admitted carrying handcuffs. He admitted talking to the construction workers and the security guard, driving a red truck, taking a few of the victim's pieces of property and disposing of them as he drove away from the scene. But he adamantly denied accompanying the victim into the model homes with the intent to either rob, assault, kidnap, or rape her. He also denied wearing latex gloves, threatening her, telling the victim there was a leak in one of the models, taking off her pants, and making most of the statements the victim attributed to him.
Instead, he told the jury that he simply forgot he was carrying his gun and handcuffs. He explained that when the victim saw his gun she freaked out, and because he was a felon prohibited from carrying a gun, he panicked. He did not want her to scream. According to defendant, he assured her repeatedly that he was not going to hurt her. Nevertheless, in his panic over being caught with a gun, he grabbed a napkin and tied it around her mouth and handcuffed her to the closet rod. He claimed he told her, "Let me make sure that these construction workers are gone, and I'll let you go."
Defendant further explained that he decided to move the victim's car and hide it to give himself more time to escape. He changed his mind and simply parked it in the driveway. He planned to walk the victim back to the sales office and let her go.
Analysis
Defendant, mistaking us for the jury, reargues his case insisting there is no substantial evidence to support the jury's verdict that he harbored the intent to commit rape. He emphasizes that he did not touch her genitals, fondle her breasts, or perform any sexual acts on her, although he had ample opportunity to do so. As defense counsel argued to the jury, defendant reiterates that if his intent had been to rape her, he could have easily done so when she was handcuffed in the closet and naked from the waist down. Yet he never said anything to her of a sexual or provocative nature. Thus, in his view, there is no credible evidence of solid value that he kidnapped or assaulted her for the purpose of raping her.
Not so. Defendant misunderstands the limited scope of appellate review of a challenge to the sufficiency of the evidence. It is the jury's prerogative, not ours, to assess credibility and to draw inferences from the evidence. As long as those inferences are reasonable, we entrust the jury with the power to determine guilt and innocence. Here the inference that defendant kidnapped and assaulted the victim with the intent to rape her is not only reasonable, it was based on an abundance of evidence.
Defendant admitted to the jury a long list of felony convictions, including a 2005 conviction for forcible oral copulation. The prosecution established propensity.
The victim gave a detailed and compelling narrative about what defendant said and did to her during the life-altering attack. The defense offered no evidence to undermine her credibility, including any plausible reason why she would lie about a perfect stranger. The prosecution established through her and the two workers' testimony that defendant isolated the victim, attempted to ensure that no one would be on the premises, stripped her below the waist, and rendered her completely vulnerable, not only by stripping her but by handcuffing her to the closet rod. The jury could reasonably infer that he intended to rape her from the time he entered the model homes with her but, fearing detection from the workers and then from the security guard, delayed acting on his intent and decided to move her to another location where he could execute on his intent to rape her.
There is plenty of precedent to support the reasonable inferences the jury drew. The fact that defendant removed her clothes is proof of intent to rape or to commit sexual battery. (People v. Holloway (2004) 33 Cal.4th 96, 138-139; People v. Duke (1985) 174 Cal.App.3d 296, 301.) In Holloway, the court aptly noted that if the defendant had a non-sexual intent when he entered, "he would have had no reason to remove [the victim's] clothing or bind her hands and feet." (Holloway, supra, at p. 138.)
Moreover, the jury could have inferred an intent to rape from defendant's own statements to the victim. While taking off her underwear, defendant told her, "You're not going to need those." The jurors reasonably could have concluded that he meant she would not need underwear because she was going to be raped. Similarly, while grabbing the napkin, he commented, "We're going to need that," indicating that he was expecting her to scream as he raped her and would need the napkin to silence her.
The jury, of course, was free to reject these inferences and accept the explanation defendant offered from the stand. But it did not. Our job is simply to ensure there is substantial evidence to support the jury's finding defendant intended to rape the victim when he kidnapped and assaulted her. The record, as recounted above, contains ample evidence to sustain the reasonable inferences the jury drew to find the requisite intent. We reject defendant's argument to the contrary.
II
SENTENCING
A. Penal Code Section 654
The court sentenced defendant to consecutive 14-year terms for kidnapping for the purpose of committing robbery and kidnapping for the purpose of committing rape. On appeal, defendant argues that the sentence for one of the counts should have been stayed pursuant to Penal Code section 654 which prohibits multiple punishments for the same act. Defendant insists the prosecution argued the case in a manner suggesting the two counts of kidnapping were related. He urges us to reverse the trial court's imposition of the consecutive 14-year terms.
In rejecting defendant's argument at trial, the court ruled, "Here the court finds that even though there was an indivisible course of conduct, there were separate objectives. [¶] . . . [¶] . . . [T]he robbery was not a necessary step to any rape, and any rape would not be a necessary step to the robbery. Accordingly, the court finds that Penal Code Section 654 does not apply to Count 1 as the evidence shows that the two kidnaps were committed with different criminal objectives." Because the court's finding of two concurrent criminal objectives is a factual determination, it will not be reversed on appeal if supported by substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Penal Code section 654 provides in relevant part: "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." The purpose of section 654 "is to prevent multiple punishment for a single act or omission . . . ." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Defendant seizes on the prosecutor's argument that defendant's taking of the victim's underwear and pants constituted robbery and facilitated a possible rape. In utilizing the victim's clothing as elements of two distinct crimes, defendant contends the prosecutor essentially conceded he had but one objective. He misreads the record and ignores the limited scope of appellate review.
Defendant first demanded that the victim put her bag on a nightstand in a bedroom of one of the model homes. Practically announcing his intent to rob her, he told her, "you better have a lot of fucking money." The fact that his plan to rape and rob her was later derailed when the security guard arrived and the victim bravely risked her life to slam and lock the door on defendant, does not erase the evidence he planned to both rape and rob her when he kidnapped her at gunpoint and forced her from model home to model home and room to room. The salient point is not whether he intended to rob her of her underwear and pants when he initially kidnapped her, but whether he intended to take any property from her by force or fear. His comment that he hoped she had a lot of money, coupled with his demand for her bag and later for her brown bag and keys, signaled to the jury that he entertained the requisite intent to rob her while he transported her.
Similarly, disrobing his victim while telling her she would not need her underwear and pants certainly suggests defendant entertained a second objective as well—he planned to rape her. While the disrobing would facilitate the rape, taking her clothes as a part of the robbery did not undermine the notion that he simultaneously pursued his intent to rape her. In short, the mere fact that her clothing became relevant to both crimes does not mean there was insufficient evidence he entertained multiple objectives. Thus, the trial court did not err by imposing multiple sentences for kidnapping for the purpose of robbery and kidnapping for the purpose of rape.
B. Attorney General Concedes Sentencing Errors
Robbery. Penal Code section 654 prohibits punishing a defendant for both a kidnapping for robbery and for any robbery that results from the conduct. (People v. Milan (1973) 9 Cal.3d 185, 197.) Defendant's conviction for robbery was based on the same course of conduct as his conviction for kidnapping for the purpose of robbery. The Attorney General concedes, therefore, he cannot be punished for both. Since the punishment for kidnapping for robbery is greater than for robbery, the latter must be stayed. We remand to the trial court to designate a new principal term and recalculate defendant's determinate term to reflect the change.
Firearm Enhancements. Senate Bill No. 620, which became effective on January 1, 2018, removed a bar prohibiting trial courts from striking firearm enhancements. Instead, "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Pen. Code, §§ 12022.5, subd. (c); 12022.5 and 12022.53.) Defendant argues, and the Attorney General agrees, his sentence should be remanded to the trial court for the opportunity to strike the firearm enhancements. The legislation applies retroactively to nonfinal judgments. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) We, therefore, remand the case to the trial court to exercise its discretion in determining whether the firearm enhancements should be stricken in the interest of justice.
Incorrect Statutory Basis for Prior Conviction Enhancements. The prosecutor alleged that defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a), and defendant admitted the conviction. Although in its tentative ruling the trial court properly identified section 667, subdivision (a), in pronouncing judgment the court mistakenly imposed two 5-year enhancements "pursuant to Penal Code section 667.5(a)." The Attorney General concedes the mistake and urges us to remand the matter to the trial court to correct the abstract of judgment. We agree with the Attorney General and, because the case must be remanded to the trial court for the sentencing errors described above, order the court to correct the abstract of judgment by reciting the proper statutory basis for the prior conviction enhancements.
DISPOSITION
The judgment is remanded to the trial court to stay imposition of the sentence for robbery pursuant to Penal Code section 654, to exercise its discretion whether to strike the firearm enhancements, and to correct the abstract of judgment to reflect the correct statutory basis for the prior conviction enhancements. In all other respects, the judgment is affirmed.
RAYE, P. J. We concur: DUARTE, J. HOCH, J.