Opinion
C086443
11-12-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL DENNER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20150006548 and SF131576B)
Defendant Joseph Michael Denner was charged with first degree murder (Pen. Code, § 187, subd. (a)) and found guilty by the jury of the lesser included offense of second degree murder (id., § 189, subd. (b)).
Defendant testified at trial that he saw codefendant Donald Rorabaugh assaulting the victim, Edward Magana, and Rorabaugh forced defendant to join in the assault and help dispose of Magana's body by threatening to kill defendant and his family. Defendant argues that the trial court erred in failing to instruct the jury that duress is a defense to aiding and abetting murder, even though he concedes that the California Supreme Court in People v. Anderson (2002) 28 Cal.4th 767, 784 (Anderson), held that duress is not a defense to any form of murder. Defendant argues that the intent required to aid and abet a murder may differ from the intent to commit murder.
However, in People v. Vieira (2005) 35 Cal.4th 264 (Vieira), the California Supreme Court held that "because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, we further reject defendant's argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder." (Id. at p. 290, citing Anderson, supra, 28 Cal.4th at p. 784.) Vieira bars an instruction that duress is a defense to aiding and abetting murder.
Defendant also argues that the trial court failed to exercise its discretion to determine whether he was eligible for probation under the mistaken belief that he was statutorily ineligible. However, in denying probation, the court did not state that defendant was ineligible, but rather articulated the factors in aggravation and mitigation set forth in California Rules of Court, rule 4.414.
The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Joni Brunetti and her husband live on a property that borders on an irrigation canal. About 2:30 a.m. on May 24, 2015, they were awakened by their dogs barking. Brunetti heard a vehicle that sounded "a little rougher than a car" but she couldn't see it. The engine stopped and then started up again after 10 or 15 minutes. The next morning Brunetti went over to the canal when she saw police officers. There was a body in the canal.
Police found blood on the roadway that matched the DNA profile of Mr. Magana, who was identified as the victim, and drag marks from the road to the canal.
The autopsy of Mr. Magana noted bruising on his eyelids and abrasions on his face, head, abdomen, and arms. He had broken ribs and a bruised left lung. There were large bruises on his scalp and temple and bleeding on the surface of his brain caused by forceful blows to the head. Bleeding in the whites of his eyes, internal bleeding, and fractures in his neck indicated Mr. Magana had also been strangled. The pathologist conducting the autopsy could not say for certain whether Mr. Magana was alive or dead when he went into the canal, but blunt force trauma or strangulation would have killed him.
Four days after Mr. Magana's body was found, a police detective interviewed defendant. The video recording of the interview was played for the jury. Defendant identified Rorabaugh in a photographic lineup as the person who killed Mr. Magana. Defendant accompanied the detective on a car ride where defendant identified the location of the house where Mr. Magana was assaulted and where Rorabaugh and defendant disposed of the body. Defendant also identified a location where a search found shirts, a backpack, a cellphone, USB cords, magazines, and a Gatorade bottle—all burned. At one point, defendant tried to jump out of the moving car but was restrained and handcuffed by police.
Defendant and Rorabaugh were tried together but had separate juries in order to present evidence to one jury that the other was not permitted to hear. Defendant's interview was played for his jury only.
Mr. Magana's wife testified at trial that she did not know defendant but she knew Rorabaugh. She and her husband would sometimes drink with Rorabaugh at the 108 Sports Lounge in Riverbank.
The manager of the 108 Sports Lounge and a bartender saw defendant and Rorabaugh at the bar on the night Mr. Magana was killed. Mr. Magana was a regular at the bar.
A friend of defendant's, who also knew Rorabaugh, testified he met up with defendant at the bar and they stayed until closing time. The friend introduced defendant to Rorabaugh when he came in about 11:00 p.m.
The bartender testified that Rorabaugh left at closing time but defendant stayed and helped clean up the patio. Defendant left in a car with three men who had been in earlier and were wearing tuxedos.
A witness testified that he had come into the 108 Sports Lounge that night dressed in a tuxedo after a wedding and gave defendant a ride a few blocks from the bar.
Two women who had been at the bar until closing time testified they gave Rorabaugh a ride home. They testified that, when he left their car, he was greeted by a man that one witness could not see and the other could not see well enough to describe.
Rorabaugh's father testified that Rorabaugh lived with his father and grandmother in the garage of their home in Riverbank. Rorabaugh had a 1966 Oldsmobile Cutlass with a big block engine and exhaust pipes that were very loud. About 2:30 a.m. on May 24, 2015, Rorabaugh's father heard his son come home when he heard the sound of loud pipes. He saw his son go into the garage. His son left and returned around 4:30 a.m. Later that morning, he heard a conversation and saw his son talking to someone outside.
Video surveillance from a business in Riverbank showed a light-colored Cutlass at 2:54 a.m. on May 24, 2015, making a turn. Police located Rorabaugh's white 1966 Cutlass at a nearby ranch. Blood in the trunk of the car matched Mr. Magana's DNA profile. A DNA swab from the steering wheel matched Rorabaugh's profile and defendant was a possible major contributor to DNA on the door handle.
Defendant testified in his defense. He recounted that he went to the 108 Sports Lounge with a friend between 9:30 p.m. and 11:00 p.m. and stayed until after closing time. He had drunk five or six beers before going to the bar and drank another four beers and a shot of vodka while there. At last call, defendant went to the Shell station to buy beer. He returned to the bar and helped pick up cigarette butts on the patio. He testified he did not get a ride from the bar but acknowledged he might not remember. Defendant testified that he left to walk home.
On the way home, defendant saw a big man, Rorabaugh, on top of a man punching him in the face. Defendant said he had not met Rorabaugh before that night and could not recall being introduced to him or seeing him in the bar that night.
Defendant tried to pull the person on the bottom out from under Rorabaugh. Rorabaugh shoved defendant to the ground. Rorabaugh told defendant he had a gun, though defendant did not see one. Rorabaugh demanded defendant's wallet and looked at his driver's license. Rorabaugh said he knew where defendant lived and would kill him and his family if defendant did not help him. Rorabaugh claimed that Mr. Magana was a methamphetamine user who had been snooping around his property. Defendant had a cellphone but the battery was dead.
Rorabaugh kicked and stomped on Mr. Magana's head. He forced defendant to kick Mr. Magana. Rorabaugh then forced defendant to help him get Mr. Magana into the trunk of his car. Rorabaugh pushed defendant into the passenger seat of the car. As they drove, Rorabaugh continued to threaten defendant. Defendant tried to jump out of the car but could not get the door open.
When Rorabaugh stopped the car by the canal, he made defendant help him lift Mr. Magana out of the trunk. Mr. Magana was still alive, moaning and breathing a bubble of blood from his nose. Defendant saw blood in the trunk of the car. Defendant complied with Rorabaugh's demand to urinate on Mr. Magana's face and grab his penis so that defendant would leave his DNA. Rorabaugh dragged Mr. Magana to the canal and defendant heard a splash.
Rorabaugh told defendant to get back in the car and they drove back to Rorabaugh's house. Rorabaugh retrieved a backpack and Gatorade bottle full of gasoline. He said they "had a job to finish." They walked on a trail to a spot near the water. Rorabaugh took some things out of the backpack, put them on the backpack, poured gasoline on the pile, and set it on fire. They walked back to Rorabaugh's house and, when Rorabaugh went inside, defendant ran home.
During his interview with a police detective, defendant said he strangled Mr. Magana. Defendant testified at trial that he only said this to be cooperative. He believed Rorabaugh strangled Mr. Magana, though he did not see him do it.
Defendant testified he did not call the police right away out of fear of Rorabaugh. But finally he told his mother and she called the police. Defendant spoke to police and told them how he had discovered Rorabaugh beating Mr. Magana and what Rorabaugh had forced defendant to do. He identified Rorabaugh as the perpetrator during the police interview. He went for a ride with the police and showed them where Rorabaugh had beaten Mr. Magana, where Mr. Magana had been dumped in the canal, and where the backpack was burned.
Rorabaugh also testified in his defense. He is six feet two inches tall and weighs 375 pounds, the same as in 2015. On the night of May 23, 2015, he had been drinking at a friend's house. He drove his Cutlass back home at about 6:00 p.m. He returned to his friend's house and stayed until around 10:00 p.m., and then went to the Red Carpet Bar and after that the 108 Sports Lounge, arriving at about 11:30 p.m.
At some point, Rorabaugh had a "little disagreement" outside the bar with another bar patron. Rorabaugh left the bar around 2:00 a.m. and got a ride home from friends. He did not recall greeting anyone when he was dropped off. He did not recall being introduced to defendant and testified he had never seen defendant in his life. After he was dropped off at home, he went to bed and did not leave the house. He woke up in the morning and stayed home all day Sunday. The next day, Memorial Day, he took his Cutlass to the farm of a friend of the family.
Rorabaugh testified that defendant had never been in his car and he did not know how defendant's DNA got in his car. He believed the video showing a car that looked like his Cutlass was from the previous day, not May 24.
Rorabaugh said he knew Mr. Magana. They drank beer and played pool in bars. The last time Rorabaugh saw Mr. Magana was two weeks before the night he died. Rorabaugh did not know how Mr. Magana's blood got in the trunk of his car. He could not imagine why defendant would make up a story that Rorabaugh killed Mr. Magana. Rorabaugh testified that he owns a .25-caliber handgun but did not take it with him that night and does not take it to bars.
DISCUSSION
Duress Defense Does Not Apply to Aiding and Abetting Murder
Defendant argues that the trial court erroneously failed to instruct the jury that duress is a defense where liability for murder is based on aiding and abetting. "[Defendant] submits that the court should have instructed his jury that duress could negate the intent required for aiding and abetting the crime of murder. Although it is true duress is not a defense to murder where liability is premised on direct perpetration of murder by the defendant [citations], the court failed to see that an exception to this rule exists where liability is premised on aiding and abetting the direct perpetrator, as in [defendant's] case."
"Penal Code section 26 declares duress to be a perfect defense against criminal charges when the person charged 'committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' " (Vieira, supra, 35 Cal.4th at pp. 289-290.)
The California Supreme Court rejected this argument in Vieira based on the holding in Anderson that duress could not negate the elements of malice or premeditation and thereby reduce first degree murder to manslaughter or second degree murder. (Vieira, supra, 35 Cal.4th at p. 290; Anderson, supra, 28 Cal.4th at pp. 781-784.) The court held that "because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, we further reject defendant's argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder." (Vieira, supra, at p. 290, citing Anderson, supra, at p. 784.)
Here, defendant was charged with first degree murder. Under Vieira, duress cannot negate the intent required for aiding and abetting a first degree murder. (Vieira, supra, 35 Cal.4th at p. 290.) Therefore, the court did not err in failing to give an instruction that duress negates the intent to aid and abet murder.
To the extent that defendant would argue that duress may be a defense to aiding and abetting second degree murder, the court in Anderson also held that "duress is not a defense to any form of murder." (Anderson, supra, 28 Cal.4th at p. 780; Vieira, supra, 35 Cal.4th at p. 290; see also People v. Burney (2009) 47 Cal.4th 203, 249 (Burney) ["it is well established that duress does not constitute a defense to murder, and does not reduce murder to manslaughter"]; People v. Hinton (2006) 37 Cal.4th 839, 882-883 (Hinton) [" '[D]uress is not a defense to any murder' [citation], and, in particular, does not negate malice. [Citation]"].) Therefore, duress is not a defense to aiding and abetting second degree murder.
As defendant acknowledges, the court did instruct the jury on duress. The court's instructions correctly limited the defense to (1) kidnapping under a felony-murder theory, and (2) kidnapping as a special circumstance on a murder charge. In Anderson, the court concluded that "duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony." (Anderson, supra, 28 Cal.4th at p. 784.) For the same reason, if a defendant is not guilty of kidnapping because of duress, the jury cannot find that the defendant committed first degree murder with the special circumstance that the murder occurred while the defendant was engaged in the crime of kidnapping. (Pen. Code, § 190.2, subd. (a)(17)(B).)
CALCRIM No. 3402 as given by the court states in relevant part: "The defendant is not guilty of kidnapping under the felony murder theory and the special circumstance if he acted under duress." The instruction concludes: "This defense does not apply to the crime of murder that is willful, deliberate and with premeditation or murder in the second degree."
To be sure, in Burney, the court observed that "duress may negate the deliberation or premeditation required for first degree murder, and an instruction [to that effect] may be appropriate if warranted by the circumstances of the case." (Burney, supra, 47 Cal.4th at p. 249, citing Anderson, supra, 28 Cal.4th at p. 784.) In other words, the circumstances of duress may be relevant to the mental state of murder. However, this "is not due to a special doctrine of duress but to the legal requirements of first degree murder." (Anderson, supra, at p. 784.)
In addition, nothing in the court's instructions barred the jury from considering whether the threats defendant attributed to Rorabaugh prevented defendant from deliberation or premeditation. (Hinton, supra, 37 Cal.4th at p. 883.) In fact, the court in Anderson concluded that the jury instruction on deliberate and premeditated murder sufficiently addressed the concept. (Anderson, supra, 28 Cal.4th at p. 784; People v. Landry (2016) 2 Cal.5th 52, 93-94.) Here, jurors were instructed with CALCRIM No. 521 that a decision to kill made "without careful consideration is not deliberate and premeditated." This instruction advised the jury that if defendant did not give "careful consideration" to the decision to commit murder because of Rorabaugh's threats, he lacked the mental state for first degree murder. The fact that the jury found defendant guilty of second degree murder may indicate that the jurors determined that the threats defendant related in his testimony led him to act without premeditation or deliberation.
Consistent with the California Supreme Court's decisions in Anderson and Vieira, defendant could not raise the defense of duress to liability for aiding and abetting a first or second degree murder and the trial court correctly limited its instructions on the subject to kidnapping as the underlying felony on a felony murder and as a special circumstance regarding first degree murder.
Having determined that the trial court did not commit error in instructing the jury on duress, we need not reach the Attorney General's contention that defendant forfeited his instructional claim of error by failing to object at trial or defendant's assertion that defense counsel rendered ineffective assistance in failing to object. (People v. Williams (2010) 49 Cal.4th 405, 468, fn. 9.)
Court Correctly Applied Aggravating and Mitigating Factors to Deny Probation
Defendant contends that he was improperly denied probation because the trial court failed to exercise its discretion to grant or deny probation under the mistaken belief that he was statutorily ineligible based on his conviction for second degree murder.
The source of this contention is a statement in the probation report: "A jury of the defendant's peers felt the evidence and circumstances surrounding the victim's death was enough to convict him of second degree murder, which makes him statutorily ineligible for a grant of probation. Since probation is not an option for sentencing, it is respectfully recommended that probation be denied."
Defendant also points to the trial court's statement that: "The defendant was convicted of second-degree murder. There is a mandatory sentence, and that mandatory sentence is 15 years to life, there's no other sentencing the Court can give."
Defendant argues that the probation report and the court's statement regarding the mandatory sentence for second degree murder show the court erroneously believed it had no discretion to grant probation. Defendant argues that "contrary to the probation report's statement, probation was an option, and contrary to the court's statement, a sentence of 15 years to life was therefore not mandatory."
We agree that the probation report did not specifically mention any probation-disqualifying circumstances, such as being personally armed with a firearm (Pen. Code, §§ 1203, subd. (e)(1), 1203.06, subd. (a)(1)), having a prior felony conviction (id., § 1203, subd. (e)(5)), or having personally inflicted great bodily injury (id., §§ 1203, subd. (e)(3), 1203.075, subd. (a)(1)). A conviction of second degree murder without more does not render defendant ineligible for probation. Accordingly, the trial court had the authority to grant defendant probation.
However, defendant misinterprets the sentencing proceedings. The trial court pronounced sentence pursuant to Penal Code section 190, subdivision (a), which specifies that "every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life." (People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4 ["a sentence for second degree murder specifies a minimum term of 15 years and is part of the sentence that is pronounced"].) A person convicted of second degree murder may not be released on parole before serving the minimum term prescribed by statute. (Pen. Code, § 190, subd. (e).) The trial court's statement regarding the "mandatory" sentence for murder in the second degree was correct.
Moreover, probation is not a sentence. " 'Probation is neither "punishment" [citation] nor a criminal "judgment" [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].' " (People v. Moran (2016) 1 Cal.5th 398, 402, quoting People v. Howard (1997) 16 Cal.4th 1081, 1092.) The trial court had jurisdiction to pronounce a judgment of guilt and impose a sentence of imprisonment, suspend execution of the sentence, and place defendant on probation, assuming there were no circumstances rendering defendant ineligible for probation. (Pen. Code, § 1203.1, subd. (a); 3 Witkin, Cal. Criminal Law (4th ed. 2012) § 646, p. 1044; People v. Orrante (1962) 201 Cal.App.2d 553, 559-566.)
As the Attorney General contends, defendant did not raise an objection at any point in these proceedings to the probation report or to the trial court's decision to grant or deny probation or to the sentence imposed. Defendant has therefore waived this issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott) ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"]; People v. Sperling (2017) 12 Cal.App.5th 1094, 1100-1102.)
In any event, whether defendant was eligible for probation is a matter of law to be determined by the trial court. Unlike factual matters entrusted to the probation officer for presentation in a probation report, a probation officer's views on the law are simply suggestions that have no bearing on the court's ultimate determination. Our concern is with whether that determination is correct. Even if defendant had made a timely objection, we conclude that there was no error in the trial court's decision to deny probation. To begin with, we review independently whether the trial court properly found the defendant ineligible for probation. (People v. Nuno (2018) 26 Cal.App.5th 43, 50; People v. Alvarez (2002) 95 Cal.App.4th 403, 408; People v. Manriquez (1991) 235 Cal.App.3d 1614, 1616-1620.) Here, notwithstanding the statement in the probation report equating a conviction for second degree murder with probation ineligibility, we find that the trial court did not deem defendant ineligible for probation. The court made no reference in sentencing to defendant's ineligibility, any statute under which defendant would be ineligible for probation, or the application of any circumstance enumerated in any statute regarding ineligibility or presumptive ineligibility. Rather, the trial court carefully articulated the factors in aggravation and mitigation set forth in California Rules of Court, rule 4.414 in denying probation. Indeed, by relying on rule 4.414 factors, the court signaled that defendant was not statutorily ineligible for probation.
All rule references are to the California Rules of Court.
We further conclude that the trial court did not abuse its discretion in denying probation based on the factors in aggravation and mitigation set forth in rule 4.414. "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of discretion. [Citation.]" (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "In reviewing [the trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) In the absence of a clear showing that the trial court's decision was irrational or arbitrary, the court is presumed to have acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Among aggravating factors, the court found that "defendant has engaged in violent conduct that indicates a serious danger to the public." (Rule 4.414(b)(8) ["likelihood that if not imprisoned the defendant will be a danger to others"].) The victim was "particularly vulnerable, he was unarmed and attacked by two people." (Rule 4.414(a)(3) ["vulnerability of the victim"].) The victim "was both beaten and strangled and thrown into a canal which demonstrates a high degree of cruelty and viciousness and callousness." (Rule 4.414(a)(1) ["nature, seriousness, and circumstances of the crime as compared to other instances of the same crime"].) "[T]here was some planning and sophistication involved as evidenced by the burning of the backpack and the throwing of the body in the canal." (Rule 4.414(a)(8) ["[w]hether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant"].)
The trial court also considered mitigating factors. "The defendant has no prior record." (Rule 4.414(b)(1) ["[p]rior record of criminal conduct"].) "The defendant does appear to be remorseful, and it appears to the Court the defendant played a less aggressive role than codefendant." (Rule 4.414(b)(7) ["[w]hether the defendant is remorseful"].)
The court thereafter sentenced defendant to 15 years to life in state prison, effectively denying probation.
Defendant contends that many of the criteria set forth in rule 4.414 would support probation, if the court had not deemed him ineligible (it did not). On appeal, we do not reweigh sentencing factors. (Scott, supra, 9 Cal.4th at p. 355.) We conclude the trial court did not abuse its discretion in denying defendant probation. (People v. Leung (1992) 5 Cal.App.4th 482, 506-507.) The record reflects that the court gave careful consideration to valid criteria in determining that defendant was not suitable for probation.
Finally, defendant asserts that he is entitled to an "updated probation report" because "the probation officer mistakenly believed [defendant] was ineligible for probation," and therefore failed to comply with rule 4.411.5(a)(9)(A), requiring a " 'reasoned discussion of the defendant's suitability and eligibility for probation . . . .' " "A probation report is advisory only. [Citation.]" (People v. Llamas (1998) 67 Cal.App.4th 35, 40.) As we have explained, there is no indication the trial court based its decision on the probation report with regard to ineligibility and every indication that it did not. In addition, the report discussed rule 4.414 criteria affecting probation. The report identified factors related to the seriousness of the crime and the defendant, including that he was a passive participant, had a minor criminal record, and was remorseful, all of which were discussed by the court at the sentencing hearing. In any event, defendant did not preserve this issue by objecting to the probation officer's report in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234.)
We conclude that the trial court did not err in denying defendant probation.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BUTZ, J. MURRAY, J.