Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F8744
SIMS, J.After the death of Christopher McCauliffe, defendants Timothy Thomas Stayer and Robert Lee Stayer and several codefendants were charged with murder (count 1; Pen. Code, § 187, subd. (a)), conspiracy to commit torture (count 2; §§ 186, subd. (a)(1), 206), torture (count 3; § 206), kidnapping (count 4; § 207, subd. (a)), and destruction of evidence (count 6; § 135). As to count 1, it was alleged as a special circumstance that defendants committed murder while in the commission of kidnapping (§ 190.2, subd. (a)(17)(B)). As to count 3, it was alleged as an enhancement that defendants inflicted great bodily injury (§ 12022.7). As to counts 1 through 4, Timothy was alleged to have served a prior prison term (§ 667.5, subd. (b)).
For the sake of simplicity, we hereafter refer to defendants as Timothy and Robert, and to Kimberly Stayer, Robert’s purported wife, as Kimberly. (As we explain in part I.C. of the Discussion, the magistrate at the preliminary hearing determined that Kimberly’s marriage to Robert was void because Robert had not yet divorced his existing wife when he purported to marry Kimberly.)
Undesignated section references are to the Penal Code.
Codefendants Kevin Charles Skelton and Daniel Patrick Coyne were charged identically to defendants. Codefendant Catherine Tuschen (defendants’ mother) was charged alone on count 5 (accessory after the fact; § 32) and also on count 6.
A jury convicted defendants on all counts and found the special circumstance and enhancement true. In a bifurcated proceeding, the trial court found that Timothy had served a prior prison term.
The trial court sentenced defendants to life in prison without possibility of parole on counts 1, 2, and 3 (running the term on count 3 consecutive to that on count 1 and staying the term on count 2 (§ 654)), plus a concurrent eight-year upper term on count 4. The court ran defendants’ six-month sentences on count 6 concurrent to the sentences on count 4, and ran Timothy’s one-year prior prison term enhancement consecutive to the sentence on count 4 and concurrent to that on count 1. The court also imposed restitution fines under section 1202.45 to be suspended “unless [defendants]’ parole[s] [were] revoked.”
The abstracts of judgment fail to show the sentences on count 6 and the fines imposed on Robert.
Timothy contends: (1) Insufficient evidence proved conspiracy to commit torture, requiring reversal on all counts as to him. (2) The derivative liability instructions must have hopelessly confused the jury. (3) When the prosecutor falsely claimed that Kimberly could not assert the marital privilege (an issue separately raised by Robert as prosecutorial misconduct), trial counsel was ineffective in failing to discover the true state of the law and object to the prosecutor’s misstatements. (4) The trial court’s failure to give a unanimity instruction requires reversal on all counts as to Timothy. (5) The trial court erred prejudicially in failing to instruct sua sponte on conspiracy to commit a battery as a lesser included offense of conspiracy to commit torture. (6) The trial court erred prejudicially in instructing on conspiracy, aiding and abetting, and natural and probable consequences, in that the jury could have convicted Timothy of first degree murder without finding that that offense (as distinguished from implied malice murder) was a natural and probable consequence of the object of any conspiracy. (7) The accomplice testimony on count 6 was insufficiently corroborated. (8) The trial court’s failure to instruct on the special circumstance with CALCRIM Nos. 700 and 703 requires reversal of the special-circumstance finding.
Robert contends: (1) The trial court’s instruction on “murder-by-torture” omitted an element of the offense, depriving Robert of his right to a jury finding on that element. (2) Insufficient evidence proved premeditation and deliberation as to count 1. (3) Insufficient evidence proved kidnapping as to count 4 and the special-circumstance allegation. (4) The prosecutor committed misconduct in closing argument as to this count and allegation, and trial counsel was ineffective in failing to object. (5) The prosecutor also committed misconduct by falsely claiming that Kimberly’s marriage to Robert was void, and the trial court wrongly took judicial notice of the marriage’s purported invalidity. (6) Cumulative error requires a new trial on all counts. (7) The trial court erred by sentencing consecutively on count 1 (murder) and count 3 (torture) because the crimes were part of an indivisible course of conduct. (8) The trial court violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] by imposing the upper term on count 4, and by sentencing consecutively on counts 1 and 3, based on facts not found by the jury. (9) The trial court erred by imposing a restitution fine under section 1202.45 because Robert’s sentence did not include the possibility of parole.
Defendants also claim to join in each other’s arguments. In his opening brief, Timothy joins in all of Robert’s arguments. In Robert’s reply brief he joins in the first, third, fourth, fifth, and eighth of Timothy’s arguments.
We shall remand to strike the restitution fines under section 1202.45. In all other respects, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Under this heading we recount the evidence in support of the verdicts, regardless of which party offered it.
The crimes
In November 2004, defendants, who are brothers, and Kimberly lived with defendants’ mother (Tuschen) and her three younger children in Anderson, California.
All unspecified dates are in 2004.
On the evening of Saturday, November 20, defendants and friends went to a party. Timothy went with Haley Savage in her Nissan Altima; Robert, Skelton, and Coyne went in Coyne’s Chevy Silverado pickup.
Kimberly, also at the party, stayed when the others left. She and Robert had not been getting along lately.
Meanwhile, Tuschen and Christopher McCauliffe met at a bar and decided to have sex. She brought him home after midnight on November 21. No one was there.
After leaving the party, Robert, Skelton, and Coyne bought two 12-packs of beer and went to a friend’s apartment in Redding. Savage drove Timothy home to pick up his cell phone charger.
Savage parked and waited while Timothy, who lacked a key, knocked on the front door, then went to the back. Through an opening in the blinds, he saw Tuschen having sex with McCauliffe. After she heard Timothy knocking, she let him in.
At some point, Savage drove away, but then returned, as we explain below.
Timothy, hearing McCauliffe’s name, realized that he was the boyfriend of Timothy’s ex-girlfriend, Laura Minkoff. Timothy left her a message on his cell phone. McCauliffe then attacked him.
In the ensuing fistfight, Timothy broke McCauliffe’s nose, blackened one eye, and spattered blood all over the bedroom. After taking him out of the house, Timothy put him in a chair on the front porch.
According to Tuschen, she smelled that McCauliffe “messed his pants” after his initial beating, while still in the house. Robert also told the police and Kimberly that when he got to the house “[i]t smelled like someone shit their pants.” However, the other persons directly involved in McCauliffe’s ordeal did not corroborate this claim.
At some time, Timothy called Robert. Timothy told the police that he said, “I’m locked out of the house . . . and mom’s having sex with somebody.” Robert told the police that Timothy said “get down to the house” because of a “problem.” According to Kimberly, Robert later told her that Timothy had urged them to come “[t]o beat up Christopher McCauliffe”; however, she called this a “paraphrase.” According to Coyne, after taking the call Robert said, “We have to go. There’s trouble[,]” then said, “There’s some guy at the house.” According to Skelton, Robert said that they “needed to go to Anderson,” but did not explain why.
Robert, Skelton, and Coyne drove quickly to Tuschen’s house in Coyne’s pickup, taking their beer. When they arrived, Timothy and Tuschen were standing by the front door; Timothy was yelling at McCauliffe, who sat in a chair on the porch, badly beaten and bloody.
Timothy said to Robert: “Hey [b]ro, this guy’s been fucking mom” (or words to that effect). According to Coyne, Robert threw a beer bottle, hitting McCauliffe in the forehead, and followed up with a punch that knocked him off the chair. As he lay on the ground unresisting, Robert hit him four or five more times until pushed away and told to “chill” by Coyne. McCauliffe remained motionless on his side.
Robert told the police that Timothy said, “this guy tried to rape my mom.”
Skelton testified that, because his back was turned, he did not see why McCauliffe fell off the chair. He agreed, however, that they had taken beer bottles off the truck as they walked toward the house.
Timothy dragged McCauliffe face-down into the garage, then hovered over him cursing. Robert, Skelton, Coyne, and Tuschen also entered the garage. The door shut.
Coyne testified that he did not see any more abuse of McCauliffe in the garage before going into the house, as Skelton and Tuschen also did. Robert came in with Coyne, but must have gone back out. Timothy apparently remained in the garage.
A few minutes later, Robert came back in holding a jug or bottle and said to Coyne: “I poured this on him”; asked why, he shrugged. According to Kimberly, Robert later said he had poured “bug spray” on McCauliffe’s eyes because McCauliffe was trying to use his cell phone.
Robert denied to the police that he poured anything on McCauliffe, but admitted that he took McCauliffe’s cell phone away, then threw it in the river at the park.
Timothy told Coyne to back up his truck to the garage. Timothy and Skelton picked McCauliffe up and walked him to the truck, which he put his hand on to steady himself. Coyne saw “some type of liquid on him” which smelled so horrible that it was hard to breathe. McCauliffe said, “I can’t see” and “[i]t burns.”
After McCauliffe sat on the tailgate, Timothy and Skelton put him into the truckbed. Coyne, Robert, and Skelton drove away from the house. No one had said where they were going.
According to Coyne, he stopped and asked Robert where to go; Robert directed him to the boat ramp at Anderson River Park, four or five minutes away, but would not say why. When they arrived there, it was very cold.
Coyne claimed that Robert drove from then on, but Skelton claimed that Coyne drove all the way.
Skelton dragged McCauliffe out of the truck, dropped him onto the parking lot, straddled him, and kicked him twice in the ribs, saying: “Don’t mess with people’s mothers.” Next, Robert (whom Coyne believed to weigh 240 or 250 pounds) stomped McCauliffe in the head around eight times, jumping up and down while holding a cell phone taken from McCauliffe. Coyne heard McCauliffe’s head hitting the asphalt. Skelton finally ran over and stopped Robert.
According to Skelton, Coyne also kicked McCauliffe once or twice in the parking lot. Coyne denied hitting or kicking McCauliffe.
Robert, Skelton, and Coyne then drove back to the house, leaving McCauliffe lying on the asphalt. No one called 911 to get help for him.
Savage, who had driven away, returned to the house in time to see McCauliffe carried out to Coyne’s truck and the truck pull away. She called Timothy, who came out and sat in the driver’s seat as she moved over. He smelled of pesticide, but claimed he did not know why. They drove to the boat ramp, where she saw someone on the ground. Timothy went over to him, came back quickly, and said: “He’s fine. He’s breathing. He’s okay.” She said they needed to call 911; he replied, “I know, I know,” but did not call. They returned to the house. In the garage, Savage saw blood and smelled the odor she had noticed on Timothy.
When Robert, Skelton, and Coyne got back to the house, they found Timothy hosing down the porch, while Tuschen was inside shampooing the carpet. According to Coyne, the garage smelled strongly of pesticide.
She had already put the bloodstained bedsheets through the washer and dryer in the garage. The police later found bloodstains in the washer with DNA that matched McCauliffe’s.
When Timothy heard that the others had gone to the boat ramp, he said that he had thought they would go to a big tree in the park called the “Senior Tree.”
According to Coyne, after 20 minutes at the house, he and Robert drove in the truck, which smelled of pesticide, to a house where Robert did a drug deal, then to a car wash. They were met by Timothy, Skelton, Savage, Kimberly, and Kimberly’s sister, who came in Savage’s car, driven by Timothy. The group tried to purge the vehicles of evidence as some of them discussed and acted out what was done to McCauliffe, unaware that the car wash’s video recorders were taping it all.
Timothy and Savage drove to her home. Robert, Kimberly, and Coyne dropped off Skelton, then checked in at a Motel 6 around 3:30 a.m.; claiming to lack identification, Robert gave Coyne money to rent the room. Once inside, Robert cleaned blood from his lower leg.
After a cell phone discussion with Timothy, Coyne drove to Savage’s home. Timothy said that he had gone to the boat ramp, seen McCauliffe, and heard him wheezing. Alarmed, Coyne decided to check on it; Savage let him take her car.
At the boat ramp, Coyne found McCauliffe lying motionless and unresponsive. Coyne called Timothy, who told him to put McCauliffe in the back seat of Savage’s car. Timothy and Savage then drove there in Coyne’s truck.
Timothy went over to McCauliffe, shook him, and announced: “Dude is dead as fuck.” He told Coyne again to put the body in Savage’s back seat and take it away. According to Coyne, he said: “No, we have to call the cops,” but Timothy answered: “No, we can’t do that.” According to Savage, Timothy came back to the truck and said: “I don’t think he’s okay. And I don’t think he’s breathing, but I don’t know.” He then got into Savage’s car, in which he and Coyne returned to Tuschen’s house, leaving McCauliffe’s body behind; Savage followed in Coyne’s truck.
Blood was later found near the seat-adjustment button of Savage’s driver’s seat.
According to Kimberly, Timothy then came to the Motel 6, carrying McCauliffe’s wallet in a plastic bag. Timothy told Robert: “We killed him, bro.”
Robert later threw the wallet onto Interstate Highway 5, from which the police retrieved it after Kimberly told them where to look. Kimberly testified under a grant of immunity.
Timothy, Robert, and Kimberly bought cleaning supplies at a Wal-Mart. After dropping Timothy off at Savage’s home, Robert and Kimberly went on to the house, where Robert cleaned the garage with ammonia and Tuschen gave Kimberly bedsheets to dispose of. Behind a flea market in Redding, they burned the bedsheets and Robert burned some of his clothing; Skelton burned some of his there at another time.
Kimberly later led the police to the burn sites.
At 9:30 a.m. on November 21, Timothy woke Laura Minkoff at home and said: “We didn’t mean for it to go this far.” Unaware of his phone message, she did not know what he was talking about. After they listened to it, he told her about the fight, claiming that he had intended only to take McCauliffe to her place to make him confess. Later, Timothy claimed that he had left the house after putting McCauliffe on the porch, had learned by calling Robert that the others had taken McCauliffe to the boat ramp, and had gone there only to find him dead; after that, they had bought cleaning supplies and cleaned up the house. To corroborate his story, Timothy handed Minkoff the watch she had given McCauliffe; Timothy also told her that they had thrown McCauliffe’s wallet, which she had made for him, into the river.
He said he was not the one who had hit McCauliffe with the beer bottle.
By the time he told Minkoff these things, she had contacted the Anderson police.
On November 22, defendants, Coyne, Skelton, Savage, and Kimberly met and agreed to keep silence. After spending the night at Minkoff’s home, Timothy and Savage went to Sacramento for several days.
Forensic evidence
The police found McCauliffe at the boat ramp around 8:00 a.m. on November 21. The first officer on the scene caught a heavy smell of insecticide, which he recognized as Diazinon. He determined that McCauliffe was dead.
This officer detected the same smell, “very strong and overwhelming,” at the autopsy on November 22, and later in the garage of the Tuschen house.
Forensic pathologist Dr. Susan Comfort found that the chemical smell coming downwind emanated from an oily liquid on the victim’s person and clothes. A frothy red-pink fluid was coming out of his nose and mouth, which struck Dr. Comfort as “a bit peculiar.”
The smell was so overpowering that Dr. Comfort and her assistants began examining the body outdoors. After they took it inside, she donned a respirator, but nevertheless suffered nausea, asthmatic symptoms, a sore throat, and a headache during and after the autopsy.
The victim’s head and neck had multiple blunt force trauma injuries “consistent with a very severe beating.” These included a deep laceration toward the back of the head which went completely through the scalp and pulled it away from the skull, a broken nose, deep bruising and swelling around the eyes, and many other abrasions and contusions, some possibly from a bottle striking the forehead.
She acknowledged that other means of inflicting blunt force could also have caused these injuries.
On the left upper chest and arm, the skin was sloughing off and discolored, as if chemically burned. There were also multiple abrasions and contusions on the arms and legs and possible defensive wounds on the hands and forearms.
The victim’s brain, which was mildly swollen, showed surface hemorrhages just below the scalp and a subarachnoid hemorrhage in the cerebellum. The brain had also suffered global hypoxic ischemic injury, meaning that neurons had started to die from impaired blood flow; the insult to the brain had occurred four to six hours before death. In other words, “there was a prolonged period of time before he finally expired.”
Internal examination further showed bleeding in the neck muscles and soft tissues consistent with a forceful injury to the neck surface, and bruising in the small intestine consistent with a blow to the abdomen.
Blood and lung tissue tests detected Diazinon, the blood at a level of 0.05 microgram per milliliter and the lung tissue at the higher level of 0.16 microgram per gram. The victim’s vitreous humor, or eye fluid, contained Diazinon metabolites, indicating that the substance had passed through the liver.
Froth like that found on the victim’s mouth normally results from death by seizure or drowning; Dr. Comfort had never seen it before in a beating death. Diazinon, an organophosphate poison, can cause the respiratory distress which produces such froth. Dr. Comfort also found a high level of pulmonary edema, another possible result of organophosphate poisoning.
The victim’s buttocks and the backs of his legs were covered with loose stool. This is rarely found postmortem. It can be a symptom of organophosphate poisoning.
The victim’s blood alcohol level was .26 percent, which is too low to be toxic. In an alcohol-tolerant person, it might not even cause unconsciousness.
Laura Minkoff testified that McCauliffe was a high-functioning alcoholic.
On the morning of November 21, it was “really chilly” at the boat ramp, with a cold wind blowing off the river. A person left out in such conditions, unconscious or incapacitated and wearing soaking-wet light clothing, will likely develop hypothermia. As body temperature at the time of death was unknown, Dr. Comfort could not say for sure that hypothermia contributed to death, but she thought it “very probable.”
The multiple contributory factors made the cause of death “really difficult . . . to analyze.” However, Dr. Comfort concluded that the victim died of blunt force trauma, with likely contributory factors including Diazinon poisoning and hypothermia.
Dr. Comfort’s autopsy report listed Diazinon poisoning only as a contributory factor because the toxicology tests were inconclusive. The true Diazinon level at the time of death was probably unknowable: Diazinon breaks down over time, and the samples were not tested until weeks after the victim’s death. The dead neurons in his brain, suggesting breathing difficulty, pointed to Diazinon.
Hypothermia was also a likely contributory factor because it would slow respiration in a person already breathing with difficulty from poisoning and head injuries, plus the effect of a .26 percent blood alcohol level. These factors would work together to depress brain function lethally.
Other expert testimony
An expert on organophosphate poisoning, Dr. Michael O’Malley, opined that “full-blown poisoning” (rather than odor-caused “direct irritant effects”) was unlikely to be “the main cause of death” because the toxicology results did not show sufficient absorption into the victim’s system.
As already noted, Dr. Comfort did not call it “the main cause of death.”
Dr. Comfort did not disagree with Dr. O’Malley’s conclusion. She took exception, however, to his ascription of the victim’s “oral nasal froth, copious diarrhea, [and]
pulmonary edema” to “terminal hypoxia” rather than Diazinon poisoning: she had not seen such froth or diarrhea in any purely “asphyxial” death. She also noted that Dr. O’Malley’s report erroneously discussed nonexistent urine test results rather than the actual vitreous humor test results, which could have affected his analysis.
Defense case
Robert called Tuschen and Skelton as witnesses.
In addition to the testimony already mentioned, Tuschen stated that she never smelled any chemical or pesticide odor on her premises and never saw anyone washing off the porch. She cleaned up the blood inside because she did not want her younger children to see the “mess.” She did not know what happened at her house on the night of November 20-21 after Timothy’s initial fight with McCauliffe. She admitted, however, that she had given bedsheets to Kimberly and possibly a jug of Diazinon to her or Robert to be burned. She also admitted that when Timothy was in jail, she told him to tell a potential witness not to talk to the police.
Skelton was called to impeach Coyne’s credibility by portraying him as a full participant in the crimes. However, Skelton did not deny his own involvement.
DISCUSSION
I
Timothy’s contentions
A. Insufficient evidence of conspiracy to commit torture
Timothy contends that the evidence does not support his conviction of conspiracy to commit torture (count 2); furthermore, since he was charged only with derivative liability, the failure to prove that he conspired with the perpetrators requires reversal of all his convictions. The evidence on this count was sufficient.
Logically, this premise, even if correct, would not apply to count 6 (destruction of evidence), which charged conduct independent of the alleged conspiracy to commit torture. Timothy asserts, however, that there is also no evidence he personally committed that crime. But he does not deny that he bought cleaning supplies along with Robert and Kimberly after McCauliffe’s death, and the jury could have inferred that he did so to facilitate the ensuing destruction of evidence at the house.
“Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or more persons conspiring to commit any crime. [Fn.] A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy. [Citations.]” (People v. Morante (1999) 20 Cal.4th 403, 416.) Thus, the People had to prove that defendant specifically intended (1) to agree with another person to commit torture and (2) to commit the elements of that offense. (People v. Jurado (2006) 38 Cal.4th 72, 123.) However, since a conspirator is responsible for everything done by his coconspirators as part of their common design, the People did not have to prove that defendant personally committed or intended personally to commit torture. (People v. Morante, supra, 20 Cal.4th at p. 417.)
Circumstantial evidence may prove conspiracy without an express verbal agreement. (People v. Longines (1995) 34 Cal.App.4th 621, 626.) This evidence may include “the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
Timothy cites a federal appellate decision for the rule that “[a]n inference of an agreement is permissible only when the nature of the acts would logically require coordination and planning.” (United States v. Garcia (9th Cir. 1998) 151 F.3d 1243, 1245.) However, we are not bound by federal appellate decisions (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97), and Timothy does not cite California authority for this rule. To the extent it may differ from California law, therefore, we need not follow it.
“Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain.” (§ 206.)
Viewed most favorably to the judgment, the evidence showed: After beating McCauliffe severely, Timothy urgently summoned Robert, Skelton, and Coyne and used the most inflammatory language possible -- telling Robert that McCauliffe had “fuck[ed]” or “rap[ed]” their mother -- to incite them to further violence “for the purpose of revenge . . . or for any sadistic purpose” (§ 206). The jury could reasonably have inferred that Timothy knew Robert’s capacity for rage and meant to trigger it. Then, having watched Robert brutally beat the already helpless McCauliffe, Timothy inflicted further pain on him by dragging him face-down into the garage. Then (apparently making no effort to intercede), Timothy watched Robert pour insecticide on McCauliffe, which any reasonable person would have expected to cause “cruel or extreme pain and suffering.” (§ 206.) (Even if Timothy had not expected that, McCauliffe’s cries -- “I can’t see” and “It burns” -- would have revealed that it did so.) Then, Timothy orchestrated the next stage of the proceedings, directing McCauliffe’s removal from the house (minus wallet and cell phone) by Robert and his friends. Timothy could only have expected them to do more of the same to McCauliffe once they reached their destination. Furthermore, his remark about “the Senior Tree” shows that he expected them to take McCauliffe to the park, a deserted and bitterly cold spot where they could torture him further without fear of discovery or intervention.
Although only Kimberly testified that Timothy specifically urged them to come and “beat up” McCauliffe, and she conceded that she was paraphrasing Robert’s account on this point, the jury could also have believed that Timothy said essentially that. In any event, his words to Robert on the porch amounted to the same incitement in other terms.
It is immaterial that Timothy did not personally beat McCauliffe again after the others came to the house, that he did not tell them where to take him, that he did not go with them to the park, and that he did not communicate with them there. He acted consistently from beginning to end: having beaten McCauliffe into helplessness, he set out to ensure that Robert and their friends would continue what he had started. Since McCauliffe was already undergoing “pain and suffering” before they reached the house, the jury could reasonably have found that Timothy’s conduct from the moment he summoned them constituted the formation of a conspiracy with them to torture McCauliffe, followed by overt acts by Timothy and the others toward its execution.
Because sufficient evidence supported Timothy’s conviction for conspiracy to commit torture, we need not address his argument that the People’s other theories of his liability were unsupported.
B. Inadequate instructions on derivative liability
Timothy contends that the instructions on derivative liability “were so conflicting, complex, generic and amorphous” [alternatively, “confusing, contradictory, imprecise, and open-ended”] as to be meaningless to lay jurors; as a result, he “was convicted by a jury not required to make factual findings necessary to a verdict consistent with the mandate of Amendments Five, Six, and Fourteen.” This claim is not preserved for appeal.
Timothy does not argue that the instructions were incorrect, only that they were unclear or incomplete. A defendant may not raise this claim on appeal unless he requested clarifying instructions below. (People v. Alvarez (1996) 14 Cal.4th 155, 222-223.) As Timothy did not do so, the claim is forfeited.
But even if it were properly before us, we would reject it. Though Timothy complains that the instructions mentioned underlying crimes or degrees of crimes “generically” and “non-specifically” rather than spelling them out, he cites no authority holding that such specificity is required. We do not consider legal propositions asserted without authority. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)
Finally, though Timothy insists that the jurors must have been confused, he cites no evidence that they were. His unfounded speculation is not cognizable.
C. Kimberly’s marital status -- prosecutorial misconduct, judicial error, and ineffective assistance of counsel
At the preliminary hearing, the magistrate ruled that Kimberly could not assert the marital privilege because her marriage was void. She then testified at the preliminary hearing and at trial under a grant of immunity.
Defendants contend that the magistrate erred, the prosecutor committed misconduct by misstating the applicable law, trial counsel were ineffective for failing to discover the correct law and raise an objection, and defendants suffered prejudice because Kimberly’s testimony was crucial to the People’s case. These contentions fail.
Background
On January 11, 2005, at the preliminary hearing (Judge William Gallagher presiding), Kimberly testified that she “was supposedly married to” Robert on June 30, 2004, in Nevada, and lived with him thereafter. Judge Gallagher permitted voir dire on her marital status.
Asked why she thought herself unmarried, Kimberly answered: “I was told that [Robert]’s still married.” Though she “considered” herself married, the prosecutor had told her that she could not assert the marital privilege.
Once Kimberly had identified Amanda Meridith as Robert’s “separated wife,” the prosecutor proffered the family law court file in the pending case Meridith v. Stayer. He asked Judge Gallagher to judicially notice that the file did not contain a “final order of dissolution,” which proved that Robert’s and Kimberly’s marriage was void.
The prosecutor mistakenly cited Family Code section 2210, which deals with voidable marriages. The controlling statute is Family Code section 2201, which provides in part: “(a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless: [¶] (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.”
After inspecting the file, Judge Gallagher asked Robert’s counsel: “Is there any real dispute about the fact that that’s still an intact marriage?” Counsel replied: “Not that I know of.” Counsel could not cite any authority that Robert’s and Kimberly’s marriage might be merely voidable.
Judge Gallagher ruled: “The Court determines that the witness is not legally married to Robert Stayer because his prior marriage has not been dissolved.”
Judge Gallagher appointed counsel to advise Kimberly about testifying. After reaching a written agreement with the prosecutor, she resumed the stand and testified at length.
Robert’s counsel expressed concerns about Kimberly’s possible implication in the crimes charged in counts 5 and 6 and her possible liability for entering into a bigamous marriage.
Jury trial (Judge Stephen Baker presiding) began on July 19, 2006. No party renewed the issue of Kimberly’s marital status at trial.
In this court, defendants requested judicial notice of the court file in Meridith v. Stayer (Shasta County Sup. Ct., Case No. 149249) and of Robert’s and Kimberly’s marriage certificate dated June 30, 2004. We granted the request. The court file shows that a final judgment of dissolution was entered on July 27, 2005 (after the preliminary hearing, but before trial) nunc pro tunc to February 20, 2004 (before Robert’s and Kimberly’s marriage ceremony).
At a hearing on March 9, 2005, the parties stipulated to February 20, 2004, as the date for a nunc pro tunc judgment of dissolution. The family court granted a motion to bifurcate issues and ruled that judgment could be entered nunc pro tunc to that date.
Analysis
Defendants contend that because on July 27, 2005, the family court entered judgment of dissolution in Meridith v. Stayer nunc pro tunc to February 20, 2004, Robert’s and Kimberly’s marriage was valid when entered into on June 30, 2004. Therefore, they maintain, Judge Gallagher erred on January 11, 2005, by finding the marriage void and barring Kimberly from asserting the marital privilege -- even though the nunc pro tunc judgment of dissolution had not yet been entered. Moreover, they maintain, the prosecutor committed misconduct by asking Judge Gallagher to judicially notice that the file in Meridith v. Stayer did not contain any order or judgment of dissolution, and trial counsel provided ineffective assistance by failing to object -- even though the file did not then contain any such order or judgment. On these facts, the argument is specious.
But even if a nunc pro tunc judgment of dissolution had been entered by the preliminary hearing, the argument would still fail. Only a validly married person may assert the marital privilege. (Evid. Code, § 970; People v. Glab (1936) 13 Cal.App.2d 528, 532-536 [bigamous spouse cannot do so].) Entering a judgment of dissolution nunc pro tunc does not retroactively validate a marriage which was bigamous when entered into. (Corbett v. Corbett (1931) 113 Cal.App. 595, 598-599; see In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 504. Cf. § 281; Fam. Code, § 2201.) Therefore, as the magistrate ruled, Kimberly could not assert the marital privilege.
Because the magistrate’s ruling was clearly correct, trial counsel’s failure to make a meritless contrary argument was not ineffective assistance. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)
D. Failure to give a unanimity instruction
Timothy contends that his convictions must be reversed because the trial court did not give a unanimity instruction. We disagree.
Timothy does not make any argument under this heading as to count 1.
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] . . . ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.] [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise rule was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.]” (Russo, supra, 25 Cal.4th at pp. 1134-1135; italics added.)
What Russo calls “multiple . . . acts [composing] one discrete criminal event” (25 Cal.4th at p. 1135) is otherwise known as a “continuous course of conduct.” A unanimity instruction is not required “‘when . . . the acts are so closely connected that they form part of one and the same transaction, and thus one offense’” or “‘when the statute [defining the offense] contemplates a continuous course of conduct or a series of acts over a period of time.’ [Citation.]” (People v. Jenkins (1994) 29 Cal.App.4th 287, 299 (Jenkins).) The exception applies where the jury could not reasonably conclude that the defendant did some of the alleged acts but not others, or where the defendant offers essentially the same defense to all the acts. (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)
As to the offenses and theories at issue here: (1) Jurors need not unanimously agree on a single overt act to convict a defendant of conspiracy, but must agree only that at least one overt act was committed by a conspirator. (Russo, supra, 25 Cal.4th at pp. 1135-1136.) (2) Jurors need not unanimously agree whether a defendant was a direct perpetrator or an aider and abettor so long as they agree he played one of those parts. (People v. Santamaria (1994) 8 Cal.4th 903, 918-920; People v. Hernandez (1995) 34 Cal.App.4th 73, 77-80.) (3) Torture, as defined by statute, contemplates a continuous course of conduct. (§ 206; Jenkins, supra, 29 Cal.App.4th at p. 300.) (4) Kidnapping continues as long as the victim’s forcible detention continues. (§ 207; People v. Chacon (1995) 37 Cal.App.4th 52, 60.)
Timothy asserts that the lack of a unanimity instruction prejudiced him as to counts 2, 3, 4, and 6 because the evidence showed multiple acts going to each count and we cannot know whether the jury unanimously agreed that he had committed any particular act. But the acts he enumerates constitute a single “discrete criminal event” or continuous course of conduct as to each count; thus a unanimity instruction was not required. (Russo, supra, 25 Cal.4th at p. 1135; Jenkins, supra, 29 Cal.App.4th at p. 299.)
On count 2 (conspiracy to commit torture), Timothy lists the following acts: his call to Robert, his statement to Robert on the porch, and “the amorphous fact that [sic] Timothy’s being in and around the others, as matters unfolded.” As indicated in part I.A. above, these acts were so closely connected as to constitute a single transaction directed by Timothy.
On count 3 (torture), Timothy lists the following acts: punching McCauliffe in the bedroom, Robert’s assault on McCauliffe on the porch, Robert’s pouring of insecticide on McCauliffe in the garage, and the group beating of McCauliffe at the boat ramp. Like the acts Timothy cites as to count 2, these acts formed a continuous course of conduct. Instead of stopping with the beating of McCauliffe in the house (which alone might not have satisfied the elements of the offense), Timothy immediately summoned Robert and friends to continue the attack.
On this count, Timothy questions whether some of the acts he lists showed the necessary “intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose” or actually “inflict[ed] great bodily injury,” as required by section 206: “While one might argue the insecticide was gratuitous in terms of causing pain, there was no evidence Robert or anyone knew the insecticide was other than malodorous. And the kicking and stomping was most likely to cause -- and did cause -- great bodily injury, but it was problematic in terms of an intent to cause the necessary level of pain.” This argument fails for two reasons: (1) Timothy cites no authority to support it, and (2) it is patently absurd. The jury could infer that Timothy and Robert knew that pouring insecticide into McCauliffe’s eyes would cause great pain because a reasonable person in their position would have known this (and as McCauliffe immediately confirmed by crying, “I can’t see” and “It burns”). And the “kicking and stomping,” the most brutal and “gratuitous” of all the punishments inflicted on McCauliffe, was accompanied by the admonition not to “mess with peoples’ mothers” -- which the jury could have taken as a clear statement of the perpetrators’ common intent and purpose.
On count 4 (kidnapping), Timothy lists the following acts: forcing McCauliffe from the bedroom out onto the porch, dragging McCauliffe into the garage, walking McCauliffe from the garage to Coyne’s truck, and the others’ driving McCauliffe to the boat ramp. (He questions whether the jury could have found all of these acts to constitute the “substantial” movement by “force” which section 207 requires. Because he does not show that the People relied on all of these acts to prove this count, we need not address this point.) Our analysis on the previous counts applies equally to this count: all of these acts formed a continuous sequence directed toward the same end.
He asserts (without record citation at this point in his brief) that the evidence conflicted as to the first three acts: there was testimony that he did not forcibly maneuver McCauliffe out of the house but merely ordered him to go to the porch, that rather than dragging McCauliffe into the garage he merely helped McCauliffe walk in on his own, and that he did not help to walk McCauliffe out of the garage to the truck. But because we construe the evidence most favorably to the verdict, we presume that the jury rejected any version of events which tended to exculpate Timothy.
Finally, on count 6 (destruction of evidence), Timothy lists the following acts: washing the porch, giving McCauliffe’s wallet to Robert, and the joint purchase of cleaning supplies to take to the house. As on the other counts, he does not show that the People specifically relied on all of these acts. And as on the other counts, all of the acts he cites were closely connected and directed toward the same end, whether they occurred before or after McCauliffe’s death.
Timothy asserts that the continuous-course-of-conduct exception to the unanimity requirement does not apply because this is not a situation where the jury had to believe that he did all the acts or none of them or where he offered a single defense to all of them. But Timothy does not explain how the jury could have believed that he did some acts and not others, or what separate defenses he offered to the different acts. Since he has not supported this contention with a developed argument, we need not consider it further. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Timothy also claims that his conviction without a unanimity instruction violated due process. As a unanimity instruction was not required, we reject this contention.
E. Failure to instruct sua sponte on conspiracy to commit a battery as a lesser included offense to count 2
Timothy contends that his conviction on count 2 must be reversed because the trial court did not instruct the jury sua sponte on conspiracy to commit battery as a lesser included offense of conspiracy to commit torture. We disagree. Even assuming for the sake of argument the trial court erred by not instructing on conspiracy to commit a battery, that error is harmless in light of the fact that all charged defendants were convicted of the substantive crime of torture. It is not reasonably probable that the jury would have convicted of the crime of conspiracy to commit only a battery and then found defendants guilty of the substantive crime of torture. (See People v. Breverman (1998) 19 Cal.4th 142, 165 [failure to instruct on lesser included offense subject to harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836].)
F. Alleged error in instructions on conspiracy, aiding and abetting, and natural and probable consequences
Timothy contends that the instructions could have allowed the jury erroneously to convict him of first degree murder without finding that that crime (rather than implied malice murder) was a natural and probable consequence of the object of any conspiracy Timothy took part in or any act he aided and abetted. He is mistaken.
The trial court instructed on these doctrines with CALCRIM Nos. 400 (Aiding and Abetting: General Principles), 401 (Aiding and Abetting: Intended Crimes), 402 (Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)), 415 (Conspiracy), 416 (Evidence of Uncharged Conspiracy), 417 (Liability for Coconspirators’ Acts), 418 (Coconspirator’s Statements), 419 (Acts Committed or Statements Made Before Joining Conspiracy), and 420 (Withdrawal From Conspiracy). Out of these, only CALCRIM Nos. 402 and 417 mentioned murder, and in each case without specification as to degree.
“‘“The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. . . . Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its natural and probable consequences, even though it was not intended as a part of the original design or common plan. [Citations.]”’” (People v. Prettyman (1996) 14 Cal.4th 248, 260-261 (Prettyman).)
“In People v. Croy [1985] 41 Cal.3d 1, we set forth the principles of the ‘natural and probable consequences’ doctrine as applied to aiders and abettors: ‘[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act may be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.’ (Id. at p. 12, fn. 5.) Thus, under Croy, a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (Prettyman, supra, 14 Cal.4th at p. 261.)
If the trial court instructs on natural and probable consequences, it must “identify[] and describ[e] each potential target offense supported by the evidence.” (Prettyman, supra, 14 Cal.4th at p. 270.)
Citing only Prettyman, Timothy asserts that the natural and probable consequences instructions here needed to name first degree murder, rather than murder per se, as the target offense. But Prettyman does not so hold, and we have not found any other case that does. For want of supporting authority, Timothy’s contention fails. (Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at p. 1794.)
In any event, the trial court instructed on the People’s theories of first degree murder and directed the jury to consult those instructions in deciding “whether the crime of murder was committed[.]” Thus, even if the jury had to be told that the target offense was first degree murder, the instructions sufficiently did so.
G. Corroboration of accomplice testimony on count 6
Timothy contends that the testimony of his accomplices on count 6 (destruction of evidence) was inadequately corroborated to justify conviction on that count. (Cf. § 1111.) We are not persuaded.
Timothy moved unsuccessfully for acquittal on all counts (§ 1118.1) at the close of his case. He cites the denial of that motion as error only as to count 6.
This is Timothy’s entire argument on the merits: “Everything we know about destruction of evidence falls into two categories. The first category includes the police discovery of burned and partially burned items in burn pits, and the police discovery of indicia of cleaning at the [Tuschen] house. The second category includes statements about cleaning materials, cleaning, burning, and the like from accomplices Kim[berly] Stayer, Catherine Tuschen, Danny Coyne and Kevin Skelton. Stated simply, the former category is insufficient to corroborate the accomplice testimony in the latter statement.”
Bald assertion without supporting argument or authority is insufficient to require a response. Therefore, we need say nothing more about this contention. (In re S.C., supra, 138 Cal.App.4th at p. 408.) Nonetheless, the partially burned
fire-pit evidence is sufficient to corroborate the accomplice testimony.
H. Instructions on the special circumstance
Timothy contends that the trial court erred prejudicially as to the special circumstance (murder committed in the commission of kidnapping) by failing to instruct the jury with CALCRIM Nos. 700 and 703. According to Timothy, without these instructions the jury could not have understood the People’s burden of proof, the required intent, the need to make an individualized finding as to his personal role, and the need to reach unanimity. We disagree.
The trial court gave CALCRIM No. 730 as follows:
“The defendants are charged with the special circumstance of murder committed while engaged in the commission of kidnapping.
“To prove that this special circumstance was true, the People must prove that:
“1. The defendant committed, or aided and abetted, or was a member of a conspiracy to commit kidnapping;
“2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more members of the conspiracy commit kidnapping;
“3. If the defendant did not personally commit kidnapping, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed kidnapping;
“4. The defendants or others with whom the defendants were aiding and abetting or with whom the defendants conspired did an act that caused the death of another person;
“5. The act causing the death and the kidnapping were part of one continuous transaction;
“AND
“6. There was a logical connection between the act causing the death and the kidnapping. The connection between the fatal act and the kidnapping must involve more than just their occurrence at the same time and place.
“To decide whether the defendants and the perpetrators committed kidnapping, please refer to the separate instructions that I will give you on [the] crimes. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I will give you on aiding and abetting. To decide whether the defendant was a member of a conspiracy to commit a crime, please refer to the separate instructions that I will give you on conspiracy. You must apply those instructions when you decide whether the People have proved this special circumstance.
“The defendants must have intended to commit, or aided and abetted, or been a member of a conspiracy to commit the felony of kidnapping before or at the time of the act causing death.
“In addition, in order for this special circumstance to be true, the People must prove that the defendants intended to commit kidnapping independent of the killing. If you find that the defendants only intended to commit murder and the commission of kidnapping was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.”
CALCRIM No. 700 (Special Circumstances: Introduction), not given here, states:
“If you find (the/a) defendant guilty of first degree murder, you must also decide whether the People have proved that [one or more of] the special circumstance[s] is true.
“The People have the burden of proving (the/each) special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. [You must return a verdict form stating true or not true for each special circumstance on which you all agree.]
“In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree.
“[You must (consider each special circumstance separately/ [and you must] consider each special circumstance separately for each defendant.)]” (CALCRIM No. 700 (2006-2007).)
CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990 -- Felony Murder), also not given, states: “If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of ______, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.
“In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a
conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following:
“1. The defendant was a major participant in the crime;
“AND
“2. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life.
“[A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.]
“[The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance[s] of _______ to be true.]
“[If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find (this/these) special circumstance[s] true, you must find either that the defendant acted with intent to kill or you must find that the defendant acted with reckless indifference to human life and was a major participant in the crime.]
“If the defendant was not the actual killer, the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of ______ to be true. If the People have not met this burden, you must find (this/these) special circumstance[s] (has/have) not been proved true [for that defendant].” (CALCRIM No. 703 (2006-2007).)
The Bench Notes to CALCRIM No. 700 state that the trial court has a duty to instruct sua sponte that in case of a reasonable doubt the jury must find the special circumstance not true. (CALCRIM No. 700 (2006-2007), citing People v. Ochoa (1998) 19 Cal.4th 353, 419.) The Bench Notes to CALCRIM No. 703 state: “The court has a sua sponte duty to instruct on the mental state required for accomplice liability when a special circumstance is charged and there is sufficient evidence to support the finding that the defendant was not the actual killer. [Citation.] If there is sufficient evidence to show that the defendant may have been an accomplice and not the actual killer, the court has a sua sponte duty to give the accomplice intent instruction, regardless of the prosecution’s theory of the case.” (CALCRIM No. 700 (2006-2007), citing People v. Jones (2003) 30 Cal.4th 1084, 1117.)
The People assert that the instructions were not necessary, but do not consider the CALCRIM Bench Notes and the authority cited there.
Assuming that the trial court should have given these instructions, its failure to do so was harmless because the jury necessarily made the required findings under other properly given instructions. (People v. Jones, supra, 30 Cal.4th at pp. 1119-1120; People v. Jennings (1991) 53 Cal.3d 334, 387.)
As to burden of proof, the jury received CALCRIM Nos. 103 and 220, both instructing that the People had the burden to prove each element of “a crime and special allegation” beyond a reasonable doubt. (Italics added.) In addition to CALCRIM No. 730, the jury was instructed on the elements of kidnapping with CALCRIM No. 1215, and on aiding-and-abetting and conspiracy with the array of instructions cited in part I.F. These instructions sufficiently explained the People’s burden of proof as to the special circumstance.
As to intent, the jury received CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together), which instructed that though kidnapping requires only general intent, commission of murder while engaged in kidnapping requires a specific intent which would be explained in the instruction for that allegation (CALCRIM No. 730), as it was. In addition, the aiding-and-abetting and conspiracy instructions specified the intents required for conviction on those theories.
As to an individualized finding on Timothy’s personal role, the trial court gave CALCRIM No. 203, which instructed the jury to consider the evidence and decide each charge for each defendant separately. The court also gave CALCRIM Nos. 540A (Felony Murder: First Degree -- Defendant Allegedly Committed Fatal Act) and 540B (Felony Murder: First Degree -- Coparticipant Allegedly Committed Fatal Act), which specifically instructed on how to consider the defendants’ respective roles. Furthermore, CALCRIM No. 730 instructed that a defendant might be guilty of the alleged special circumstance either as a perpetrator, and aider and abettor, or a conspirator.
As for unanimity, the trial court gave CALCRIM No. 3550, which states in part: “Your verdict must be unanimous. This means that, to return a verdict, all of you must agree to it.”
So instructed, the jury convicted Timothy of murder and kidnapping. Thus, to convict Timothy of murder in the commission of kidnapping, the jury must have found every required element proved beyond a reasonable doubt, must have determined Timothy’s individual liability as an aider and abettor or conspirator, and must have done so unanimously. Therefore the omission of CALCRIM Nos. 700 and 703 was harmless.
II
Robert’s contentions
A. “Instruction on murder-by-torture”
Robert contends: “In instructing the jury on first-degree-felony murder-by-torture, the trial court failed to correctly instruct the jury on the mental element of the crime: ‘murder committed with a willful, deliberate and premeditated intent to inflict extreme and prolonged pain,’” thus depriving Robert of a jury finding on that element of the crime as defined by section 189.
The contention is frivolous. Robert’s counsel has misread the record. In fact, the trial court gave the instruction counsel says is missing. Thus, page 1738 of the Reporter’s Transcript and page 1761 of the Clerk’s Transcript reveal the following instruction: “The defendants are guilty of first-degree murder if the People have proved that the defendants murdered by torture. The defendants murdered by torture if, one, they willfully, deliberately and with premeditation intended to inflict extreme and prolonged pain on the person while that person was still alive; two, they intended to inflict such pain on the person killed for the calculated purpose of revenge, extortion, persuasion or other sadistic reason; and three, the torture was the cause of death.” (Italics added.) Robert’s contention of instructional error is not meritorious.
B. Insufficient evidence of premeditation and deliberation
Robert contends that the evidence as to him did not prove premeditation and deliberation, but only voluntary manslaughter. We disagree.
In his reply brief, he argues in the alternative that it proved second degree murder. As that argument was not raised in the opening brief, we disregard it. (Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.)
Robert cites the categories of evidence for premeditation and deliberation set out in People v. Anderson (1968) 70 Cal.2d 15 (Anderson) at pages 25 through 27 (planning activity, motive, and manner of killing), and asserts that the evidence fell short on all three. However, these categories are not definitive or a sine qua non for proving premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117, 1125-1126.)
As this court has noted, the tactic of “using [Anderson’s] template as a straightjacket on the manner in which premeditation can be proven adequately at trial” is “discredited.” (People v. Gunder (2007) 151 Cal.App.4th 412, 420.) Therefore, we consider the evidence without “belaboring the bullet points of planning, motive, and manner of killing on which [] Anderson focused” (ibid.), viewing it most favorably to the verdict and deciding only whether substantial evidence supports that verdict. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
From first to last, Robert set out to hurt McCauliffe as much as possible, up to and including death. After beating him on the porch when he was already defenseless, Robert stole his cell phone to ensure that he could not get help, poured insecticide onto him, drove him or directed him to be driven to the boat ramp, stomped him eight times in the head, then drove away, leaving him in desperate condition in a cold, dark, deserted spot where it was easily foreseeable that, if unaided, he would soon die. Furthermore, each of Robert’s assaults continued until he was stopped; thus, if not for Coyne’s intervention at the house and Skelton’s intervention at the boat ramp, Robert might well have killed McCauliffe immediately at one place or the other.
“Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 603.) The sequence of events involving Robert took several hours, during which he had numerous opportunities to reflect but never changed his course of conduct. The jury could reasonably have found that this course of conduct proved premeditation and deliberation.
Robert asserts that this evidence merely proved “heat of passion” voluntary manslaughter, a lesser included offense on which the jury was instructed. We disagree.
“[H]eat of passion” voluntary manslaughter requires proof of provocation and heat of passion. (People v. Lee (1999) 20 Cal.4th 47, 59.) The provocation must be caused (or reasonably believed by the defendant to have been caused) by the victim, and must be “sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]” (Ibid.) If “an ordinarily reasonable person,” so provoked, would have acted in this manner, there is legally sufficient heat of passion to reduce murder to voluntary manslaughter. (Ibid.) It is not enough that the defendant actually acted in a heat of passion -- the circumstances must have been such that the ordinarily reasonable person would have done the same. (Id. at p. 60.) A defendant who had time to reflect and cool down, but did not, cannot claim heat of passion. (People v. Pride (1992) 3 Cal.4th 195, 250; People v. Daniels (1991) 52 Cal.3d 815, 868.)
Robert asserts that he was provoked by the revelation that McCauliffe had had intercourse with defendants’ mother, that this provocation would have aroused heat of passion in an ordinarily reasonable person, and that he acted in the grip of passion from then on. He relies on People v. Borchers (1958) 50 Cal.2d 321 (Borchers). Butin Borchers, the victim’s final provocation immediately preceded the defendant’s fatal act; thus, the court impliedly found that he had no time to reflect and cool down. (Id. at pp. 326, 328-329.) Borchers is therefore inapposite.
Robert has shown no error on this count.
C. Insufficient evidence of kidnapping
Robert contends that there was insufficient evidence to prove kidnapping (count 4) and the related special circumstance because the People failed to prove that McCauliffe did not go with Robert, Skelton, and Coyne voluntarily. This contention is frivolous.
“Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into . . . another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a).)
The trial court instructed on this count as follows:
“To prove that a defendant is guilty of [kidnapping], the People must prove that:
“1. The defendant took, held, or detained another person by using force or by instilling reasonable fear;
“2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance;
“3. The other person did not consent to the movement;
“AND
“4. The defendant did not actually and reasonably believe that the other person consented to the movement.
“In order to consent, a person must actually freely and voluntarily and know the nature of the act.
“Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.
“The defendant is not guilty of kidnapping if he reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.
“The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if he (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.
“Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it.” (CALCRIM No. 1215.)
Robert asserts that McCauliffe consented to being moved because he walked toward Coyne’s truck on his own power without being forced or threatened into doing so, entered the tailgate on his own or with “assistance,” “scooted himself back into the bed,” and remained there without compulsion. In other words, Robert claims that the jury could rationally have decided the question of consent without considering what had already happened to McCauliffe. That is, according to Robert, in deciding whether defendants used force or fear to make McCauliffe get into the truck the jury could not consider that shortly before he did so he had been beaten twice, dragged face-down into the garage, had insecticide poured over him, and had his wallet and cell phone stolen to keep him from seeking help or identifying himself; nor could the jury consider that defendants never gave him the option of simply walking away. A rational jury could not have taken such a blinkered view of the evidence.
Robert admits that there was also testimony McCauliffe was “kind of dragged” toward the truck, but claims this is not dispositive because the dragging did not continue all the way to the truck.
The cases Robert cites are not on point. In People v. Mayberry (1975) 15 Cal.3d 143, the trial court refused instruction on reasonable good faith belief in consent, despite evidence supporting that defense (id. at pp. 149, 153-158); here, whether or not that instruction was deserved, the trial court gave it. In People v. Rhoden (1972) 6 Cal.3d 519, 527-528, and People v. Green (1980) 27 Cal.3d 1, 63-65 (overruled on another point, People v. Martinez (1999) 20 Cal.4th 225, 239-240), the defendants used false pretenses to lure the victims into vehicles; here, they did not.
Sufficient evidence supported Robert’s conviction on this count.
D. Prosecutorial misconduct as to count 4 and the special circumstance
Robert contends that the prosecutor’s closing argument on count 4 and the special circumstance relied on facts that did not prove kidnapping and argued facts not in evidence. He also contends that trial counsel was ineffective for failing to object. These contentions fail.
Robert complains that the prosecutor misrepresented the facts and the law as follows: (1) he cited facts which “occurred before the intent to move Mr. McCauliffe was formed” to prove that intent; (2) he misstated some of them; and (3) he misstated the standard for consent by asserting that McCauliffe would not have consented to go to a boat ramp to be beaten to death -- i.e., he told the jury that the defense of consent to kidnapping requires proof that the victim consented not only to being moved but to “the consequences of that movement.” He admits, however, that his trial counsel did not object to any of this alleged misconduct.
A claim of prosecutorial misconduct is forfeited on appeal if there was no objection and request for admonition of the jury, unless a request would have been futile or an admonition would not have cured the harm. (People v. Earp (1999) 20 Cal.4th 826, 858; People v. Hill (1998) 17 Cal.4th 800, 820.) Robert does not try to show that either of these conditions applies. Therefore, even if misconduct occurred, the claim is forfeited.
Robert’s fallback ineffective-assistance argument does not help him. Such a claim cannot succeed on direct appeal if, as here, the record does not show why counsel acted as he did, unless there could be no conceivable tactical reason for counsel’s conduct. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Furthermore, it is rarely ineffective to refrain from objecting during closing argument, since counsel can normally choose instead to make a counter-argument and might reasonably think this less likely to annoy the jury. (See Jones, supra, 29 Cal.4th at p. 1254; People v. Ghent (1987) 43 Cal.3d 739, 772.)
Robert has shown no grounds for reversal on this issue.
E. Other prosecutorial misconduct
Robert also contends that the prosecutor committed misconduct by claiming at the preliminary hearingthat Kimberly could not assert the marital privilege. We have answered this contention in part I.C. above.
F. “Cumulative constitutional error”
Robert contends that “cumulative constitutional error” compels reversal and a new trial. As he has shown no trial error, we reject this contention.
G. Consecutive sentencing on counts 1 and 3
At sentencing, defendants’ counsel argued that section 654 barred separate sentences on count 1 (murder) and counts 3 and 4 (torture, kidnapping) because defendants’ acts formed an indivisible course of conduct. The trial court responded that separate and consecutive sentencing on these counts was justified because there were three distinct “time frames” at issue -- the garage, where torture took place; the post-garage period of reflection when it was decided to kidnap the victim and remove him to a different location; and the boat ramp, where the fatal injuries were inflicted. (The prosecutor stated, however, that the People would accept a concurrent sentence as to count 4, and the court adopted this recommendation.) The court thereafter imposed separate and consecutive sentences on counts 1 and 3.
Robert contends that the trial court erred under section 654 as to counts 1 and 3 by not staying sentence on one count. We disagree.
Under section 654, if two convictions are based on an indivisible course of conduct, the trial court may not properly impose sentence on both. Whether a course of criminal conduct is divisible and subject to multiple punishment depends on the actor’s intent and objective: “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”; however, where a defendant has “multiple criminal objectives, independent of and not merely incidental to each other,” multiple punishments may be imposed. (People v. Beamon (1973) 8 Cal.3d 625, 637; accord, People v. Hicks (1993) 6 Cal.4th 784, 789.)
Ignoring the trial court’s remarks, Robert asserts: (1) according to the People, defendants’ intent and objective was to punish McCauliffe for having intercourse with their mother; (2) therefore, all their acts must have been done pursuant to that single intent and objective. Robert’s failure to address the trial court’s reasoning forfeits his claim of error.
A judgment or order of the trial court is presumed correct, and the appellant has the burden of demonstrating error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To meet this burden, the appellant must present argument and authority on each point made, or his argument will not be considered. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) An argument which does not acknowledge the trial court’s reasoning cannot show that it was wrong.
In any event, defendants’ intent to “punish” McCauliffe did not logically preclude “multiple and simultaneous objectives, independent of and not merely incidental to one another[.]” (People v. Beamon, supra, 8 Cal.3d at p. 639.) Defendants could have “punished” McCauliffe by beating him without torturing or murdering him. Moreover, on Robert’s own account his intent in pouring Diazinon in McCauliffe’s eyes, one of the acts constituting torture, was not to punish him or to murder him but to stop him from using his cell phone. Thus, the trial court’s finding that section 654 did not bar punishment on both counts 1 and 3 was amply supported.
H. Cunningham error
Robert contends that the trial court’s imposition of the upper term on count 4 and consecutive sentencing on counts 1 and 3 violated his constitutional right to a jury finding that all factual matters affecting his sentence were proved true beyond a reasonable doubt, requiring reversal and remand for resentencing. (Cunningham v. California, supra, 549 U.S. [166 L.Ed.2d 856].) No reversible error occurred.
Inexplicably, the People do not answer this argument.
Robert’s consecutive-sentencing claim fails because consecutive sentencing does not implicate Cunningham. (People v. Black (2007) 41 Cal.4th 799, 823 (Black).) As to the upper-term sentencing, when a trial court uses a sentencing factor that is valid under Cunningham to impose the upper term, it does not matter whether the court also used invalid factors. (Black, supra, 41 Cal.4th at p. 816.) Prior convictions are a valid ground to impose the upper term under Cunningham. (Cunningham, supra, 549 U.S. 270, 283 [166 L.Ed.2d at p. 869]; People v. Sandoval (2007) 41 Cal.4th 825, 837 (Sandoval).) The court used this factor here.
At sentencing, the trial court noted “the fact that the defendants have a criminal history” as one of five aggravating factors on count 4. The felony convictions to which the court referred were undisputed at trial and remain undisputed on appeal. Because those prior convictions were a valid ground for imposing the upper term as to both defendants, we need not consider whether any of the court’s other grounds were invalid. (Sandoval, supra, 41 Cal.4th at p. 837; Black, supra, 41 Cal.4th at p. 816.)
Before trial, the People moved to impeach defendants, should they testify, with Timothy’s four felony convictions (Health & Saf. Code, § 11379) and Robert’s felony conviction (§ 246.3). The trial court granted the unopposed motion.
I. The section 1202.45 fines
Defendants contend correctly that a restitution fine may not be imposed under section 1202.45 where, as here, the sentence does not allow for the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1185; accord, People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) We shall therefore strike the fines imposed on defendants under this provision.
The People also ignore this contention.
DISPOSITION
All fines under Penal Code section 1202.45 are hereby stricken. The trial court shall prepare new abstracts of judgment which reflect the striking of these fines, the sentences imposed on defendants on count 6, and the remaining fines imposed on Robert (see fn. 4 ante), and shall forward certified copies of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur: BLEASE, Acting P.J., ROBIE, J.
These codefendants entered guilty pleas and agreed to testify in defendants’ trial. Skelton pled guilty to two strikes (not further specified in this record) with a stipulated prison term of 14 years and eight months. Coyne pled guilty to kidnapping, involuntary manslaughter, and the infliction of great bodily injury, with a stipulated prison term of 12 years. Tuschen pled guilty to both counts charged against her, with a sentencing lid of three years.
Except on the issue of Kimberly’s marital status and the prosecutor’s alleged misconduct, addressed in part I.C of the Discussion, Timothy does not offer additional arguments to support Robert’s arguments. Therefore we need not separately discuss Timothy’s joinder.
Robert offers new arguments on some “joined” issues. Unfortunately for Robert, however, it is improper to raise new arguments which apply only to him as an alleged direct perpetrator (rather than to both defendants as alleged conspirators or aiders and abettors) for the first time in a reply brief, because this tactic deprives the People of the chance to respond. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Therefore, so far as Robert’s belated “joinder” arguments address only his own situation and the evidence pertaining only to him, we decline to consider them.
Defendants did not testify, but their recorded statements to the police were played for the jury in redacted form. (The transcripts given to the jury were not admitted in evidence, but the parties do not dispute their accuracy.) The trial court instructed the jury that neither defendant’s statement could be used against the other defendant.
McCauliffe’s body, when found, showed evidence of recent severe diarrhea. Forensic pathologist Dr. Susan Comfort opined that such diarrhea is an effect of Diazinon poisoning.
CALCRIM No. 402 as given stated in part: “To prove that a defendant is guilty of murder, the People must prove that: [¶] 1. The defendant is guilty of torture; [¶] 2. During the commission of torture, the crime of murder was committed; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of murder was a natural and probable consequence of the commission of the torture. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the torture, then the commission of murder was not a natural and probable consequence of torture. [¶] To decide whether the crime of murder was committed, please refer to the separate instructions that I will give you on that crime.”
CALCRIM No. 417 as given stated in part: “To prove that a defendant is guilty of the crime charged in count 1 (murder), the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: torture; [¶] 2. A member of the conspiracy committed murder to further the conspiracy; [¶] AND [¶] 3. Murder was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit.”
The court instructed further as to murder with CALCRIM Nos. 500 (Homicide: General Principles), 548 (Murder: Alternative Theories [malice aforethought and felony murder]), 520 (Murder With Malice Aforethought), 521 (Murder: Degrees [including as first degree murder theories “[d]eliberation and premeditation,” “[t]orture,” and “[p]oison”]), 522 (Provocation: Effect on Degree of Murder), 540A (Felony Murder: First Degree -- Defendant Allegedly Committed Fatal Act), 540B (Felony Murder: First Degree -- Coparticipant Allegedly Committed Fatal Act), 549 (Felony Murder: One Continuous Transaction -- Defined), and 730 (Special Circumstances: Murder in Commission of Felony [kidnapping]).