Opinion
A144378
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. TINA ODOM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR211443)
INTRODUCTION
Keith Osby was beaten, bound, and shot in the head because defendant Tina Odom and her mother believed he stole a PlayStation and laptop from their home. Defendant claims no substantial evidence supports her conviction of first degree murder and torture. She also asserts the trial court erred in its instructions regarding the kidnapping and torture special circumstances, and that no substantial evidence supports the jury's findings on those special circumstances. Lastly, she maintains her sentence of life without the possibility of parole violated her Eighth Amendment rights because she was 18 years old at the time the crime was committed.
We conclude there was instructional error due to a conflict in the language of the standard CALCRIM instructions where, as here, a kidnapping with intent to kill special circumstances finding is sought under Penal Code section 190.2, subdivision (a)(17)(M), but that the error was harmless in this case. We further conclude the verdicts were supported by substantial evidence and the sentence of life without possibility of parole did not violate defendant's Eighth Amendment rights.
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 2011, police were dispatched to a location in Vallejo. They found the body of a man, later identified as Keith Osby, "who appeared to have been bound" and shot in the head. Neighbors had heard a gunshot the night before, sometime between 11:00 p.m. and 12:00 a.m.
Police saw "one apparent bullet hole that was still dripping with some coagulated blood" on the back of Osby's head. He was blindfolded with a bloodstained T-shirt, and his wrists were bound behind his back with blue tape. There was blue tape of the same kind on both his pant legs. Osby's body had "bruising to the right portion of the shoulder area."
Dr. Susan Hogan, a forensic pathologist, performed an autopsy of Osby's body. There was a gunshot entry wound on the crown of his head. His hands were "swollen and very congested," which indicated they had been bound while he was still alive. There was blunt force trauma to his torso, and a "railroad injury which is two parallel linear contusions with an area of blanching in between" on his back. This type of injury was indicative of "being struck with a round, long instrument such as a pipe or a baseball bat or a police baton." He also had abrasions on his chin, both knees, right foot, left thigh and left shoulder, as well as a contusion on the sole of his left foot.
Dr. Hogan also found extensive internal bleeding inside Osby's head and body, with a "massive" hemorrhage in his abdomen. She explained "there was some sort of crushing blunt force injury to this gentleman that crushed a whole lot of small vessels and they all started bleeding. [¶] . . . [¶] [It] could be from punching or kicking or being hit with something, like a baseball bat." Because of the injuries to "a million little arteries" she opined this was "a fatal injury regardless of whether he received medical care or not." Although the gunshot wound was the cause of Osby's death, Dr. Hogan opined that "either the blunt force trauma or . . . the gunshot wound to the head, either one separately would have killed him."
Dr. Terri Haddix, a pathologist, testified she did not have enough information to opine whether or not the hemorrhaging sustained by Osby would have caused his death if untreated.
The incident precipitating Osby's death was the theft of a PlayStation 3 and a computer from a home shared by a number of people, including defendant, her mother Ryan Odom (Ryan), and her sister Crystal Odom (Crystal). Ryan's brother Frank Bigoski (Bigoski) and his friend Janiel Miller (Miller) also lived at the house, as did defendant's boyfriend DaMarcus Armstrong (Armstrong) and her best friend Jennifer Whittington (Whittington). Ryan's boyfriend, Kahlil Askari-Roberts (Askari-Roberts), often stayed at the home. Defendant's minor siblings also lived there.
Defendant, 18 years old at the time of the crime, testified Osby had been her boyfriend until a few weeks before his killing and he had lived at the house for about two months prior to May 2011. They broke up because Osby "wanted [defendant] to prostitute and [she] wanted to be his girlfriend." Whittington testified she was present during a conversation about Osby between Ryan and defendant while Osby was still living in the house. Ryan told defendant she "needed to stop treating [Osby] the way she was treating him," because he was "a good guy." Whittington testified "that's when Tina said he was trying to prostitute her."
After Osby moved out of the house, Ryan and Bigoski thought he had taken a laptop and PlayStation. The residents of the house, including defendant, knew Ryan and Bigoski were both "upset" with Osby.
Whittington testified about an incident in early May 2011, when Osby had ridden his bike to the house. In a "spur of the moment thing," defendant told Whittington they should take Osby's bicycle, which they did. When Osby noticed his bicycle was gone, he accused defendant and Whittington of taking it. Defendant responded "Well, where is our laptop and [PlayStation] 3?" They did not give the bicycle back to Osby, and he left the house without it. Defendant and Whittington later sold it.
On May 12, 2011, a friend of Osby's told Ryan and Bigoski that Osby had tried to sell him a PlayStation and "a laptop with something broken on it." This information was significant because the stolen laptop had "something broken on the side, a button or something."
Ryan told Whittington " 'you need to call [Osby] and get him to come over here.' " Ryan instructed Whittington to lure Osby to the house by telling Osby they were "going to do a robbery" and if he "wanted to be a part of it . . . she'd give him a cut." Osby initially declined, but Ryan had Whittington call him back and tell him she wanted him to be the driver, to which he agreed. Ryan actually wanted to question Osby about the PlayStation and laptop. Ryan said " '[i]f he comes in here, you know, and lies to me, and tells me he didn't have the computer or Play Station, then I'm going to punch him in the face.' " Defendant was present during this conversation.
Around 3:00 or 4:00 in the afternoon, Osby's brother dropped him off at the house. Whittington greeted Osby, and he advised her to "slow down on doing pills," referring to ecstasy, because she was losing too much weight. Whittington had taken four ecstasy pills that day. Ryan went to defendant's bedroom and woke her, telling her to get up because Osby had arrived. Defendant testified she did not know Osby was coming to the house until Ryan told her.
Armstrong, defendant and Crystal came outside, and defendant introduced Armstrong to Osby. Defendant and Armstrong went back in the house, and then Whittington went inside with Osby and his brother. They encountered Ryan, who gave them both a hug and told Osby he "needed to start coming around more." Whittington, Osby and his brother went back outside, where his brother said he would leave and return later, and Whittington and Osby reentered the house. There was an empty bedroom where people would "hang out." Before Osby went in that room, Crystal told him "maybe it wouldn't be a good idea for him to walk in there because my mom thinks that he stole a Play Station, and . . . I know how my mom is and she might try to start some stuff." Osby ignored the warning, and he and Whittington went in.
Defendant, Ryan, Armstrong, Bigoski and Askari-Roberts were already in the bedroom. As soon as the door closed, Ryan looked at defendant and punched Osby in the face. Defendant saw "his hand go up" so she started punching him "to defend my mom." Defendant, who at about 270 pounds weighed much more than Osby's 115 pounds, admitted punching his face and head with closed fists "[n]ot more than eight times." Osby never hit back.
Whittington blacked out, and when she came to a few seconds later, Osby was "crouched in the corner" and defendant, Ryan and Askari-Roberts were all kicking and hitting him. Miller came into the room, and saw Osby being held down on the ground by Armstrong and Askari-Roberts. Bigoski left the room, returned with a baseball bat, and began hitting Osby on his right shoulder. Ryan accused Osby of stealing from her children and trying to prostitute defendant. Ryan hit him in the abdomen with a closed fist two or three times, until she hurt her hand. Then she began kicking Osby four to six times while he was being held down. Defendant kicked him in the foot. Bigoski, Askari-Roberts and Armstrong moved Osby to a bed, Miller sat on his legs, and Ryan told defendant to go and get some tape.
Defendant left the room and asked Crystal where the duct tape was. She eventually returned to the room with blue tape and gave it to Armstrong, who used it to bind Osby, taping both his hands and feet. Armstrong and Bigoski then carried Osby to the couch, and Ryan continued to ask him where the PlayStation and laptop were. Armstrong said Ryan was getting " 'too emotional,' " and told her to leave the room. Askari-Roberts left with her. Crystal saw them leaving and asked Ryan about the blood on her shirt. Ryan said the blood was Osby's, and " 'If we let him go, he will come back and retaliate against us.' " Ryan asked Whittington to call her a cab, and had Bigoski wipe the blood from her shoes.
Defendant, Armstrong, Bigoski and Miller remained in the room with Osby. Armstrong had a gun he called "Stella" that defendant testified he "always had." He pointed the gun at Osby's head, and said " 'You better start telling us what happened to our stuff, or I'll pull the trigger.' " Armstrong had previously removed the bullets from the gun, but he pulled the trigger, it clicked, and he told Osby " 'I got one in here. You better tell me.' " Osby continued to deny stealing the PlayStation and laptop, and was crying and begging to be released. Armstrong left the room, and then left the house with Ryan.
At that point, Osby was emotional, "pretty much beaten up . . . his nose is bleeding and his eye is beginning to swell up, and . . . he's crying." Crystal saw Osby bound and sitting. His shirt was off, and his arms were bound behind his back. Osby was crying, saying he would never steal from Ryan, and just wanted to go home to see his child. According to Miller, Crystal told them " 'You guys are fucking stupid. What are you doing? I'm telling the police.' " At some point, Crystal asked defendant what she had done to Osby, and she responded " '[w]hat does it look like?' " Later, defendant told her "[t]hey beat the crap out of him" "[b]ecause he had stolen the Play Station," and defendant was angry with him.
Whittington walked in, and also saw Osby leaning against the couch, shirtless, with swollen eyes, dried blood on his face and "his nose looked like it was broke." Osby's breathing was labored, like he was in pain, and he had duct tape hanging off his mouth. Osby said to Whittington, " 'For real, Jen? You set me up. You out of all people.' " Whittington told him to cooperate, and she gave him water and held a cigarette for him to smoke. Defendant saw her do this, and told her to get out of the room because she was "being too nice." Defendant called Ryan to report Whittington's actions, and put her on the phone with Ryan. Ryan told Whittington "to stay out [of] the fucking room, that I [was] not supposed to be in there," so she left.
Armstrong and Bigoski had discussed the plan, which, Miller testified, was to take Osby "to the BART station in Richmond and drop him off so they could have enough time to get back and everybody at the house could kind of disburse." Defendant was there during the discussion. They needed a car to transport Osby, so Ryan and Armstrong left to find a car. Defendant knew Osby was "not allowed to leave [the house] until a car got there." Ryan went to Fairfield Taxi, where Askari-Roberts worked. Defendant spoke with Ryan by phone while she was there, providing her with information about what was happening in the room.
Armstrong returned a few hours later with a taxi. Around 10:00 p.m., Crystal saw a van from Fairfield Taxi pull up to the house. Armstrong and Bigoski picked up Osby, carried him to the taxi, blindfolded him, and put him in the back of the van. Armstrong also put some of Osby's clothes, including a shirt, sweater, hat and shoes in the back of the van. Defendant and Miller were outside by the van. Defendant wanted to go with Armstrong, but he told her " 'You are not going anywhere.' " Defendant testified Armstrong told her he was going to take Osby to Richmond, give him $5, and "let him find his way home." Armstrong left with Osby in the van.
Around 11:00 p.m., Ryan sent a taxi to pick up defendant and take her to Fairfield Taxi. While there, defendant asked Armstrong " 'What did you do with [Osby]?' " Ryan answered that Osby was in Richmond. Defendant and Armstrong returned at about 2:00 in the morning. Whittington or Crystal asked Armstrong what happened, but he would not answer. Neither defendant nor Armstrong showed any emotion.
Ryan and Askari-Roberts returned to the house around 4:00 or 5:00 a.m. Ryan told Whittington, Bigoski and Miller that " '[t]hings just got out of hand,' " and "if the police come we need to say that they came and left and they dropped [Osby] off at Richmond BART with $5." Ryan directed Crystal and Whittington to clean the room where the beating occurred. They "spot[-]cleaned" the blood spatter in the room and righted the upended dresser. Defendant instructed them to cut out a blood stain on the couch and burn it. The next day, Ryan had Whittington clean the room again.
Later that day, a friend of Osby's called the house, and while on the speakerphone, said she had heard on the news that Osby had been shot. When defendant heard that, she went to Ryan's room. Whittington was still on the phone with Osby's friend. Ryan and defendant came back across the room, and heard the end of the conversation. Whittington testified that Ryan took her to Ryan's room and told her "things got out of hand, that she had to have [Osby] handled, that there is no hard feelings against me but if I can't keep my mouth closed she is going to have to handle me too." Later, defendant and Ryan called a meeting with Whittington, Crystal, and the two minor children. Defendant and Ryan told them "if the police come that we need to say [Osby] came and that he left in a white car with [someone named] Britney and that we didn't see him for the rest of the night." Defendant and Whittington initially told that story to police when they were arrested for murder.
Whittington and Miller both testified pursuant to a plea agreement under which each would plead guilty to accessory after the fact to murder and be sentenced to three years in exchange for their truthful testimony.
Armstrong left and did not return to the house for about three days after the incident. Defendant asked Ryan to let him return, saying " 'He got rid of the gun, let him come home.' "
After Whittington and defendant were arrested and incarcerated in the same facility, they exchanged letters. Defendant wrote to Whittington: "[T]his shit is deep. Deeper than a mutha-fukin' [t]rench. I'm not numb! Maybe [h]ot [h]eaded [and] far from Ryan! It's just when I did the things I did, I really, really didn't give a fuk! Honestly [and] still don't! [And] if I had to, I'd do it again [and] again! [I]t don't [faze] me none! Man, like I said, it didn't even make my heart race like it would have the average person! [Armstrong] knows! He felt my chest [and] it was just my normal [r]hythm! Honestly, I think I really scared him. [And] at 1st yeah, I was just going along but as soon as the gun was in my hand, I swear I felt like a whole new person!" In another letter, defendant wrote: "We all guilty in some way, feel me . . . . Yeah, I helped Ryan beat [Osby] up! You called him over for Ryan. [T]he boys taped him up for Ryan [and] we all know the outcome bcuz of Ryan. . . ." Defendant testified her statements in the letters meant she was telling Whittington "that I had killed somebody." She also stated that was not true, but that she was just bragging because she wanted Whittington to "think I was cool. I wanted her to like me."
Defendant testified she did not wish Osby to be killed, and was surprised he was murdered. She acknowledged, however, that "everything [she] did in that room showed [she was] on Ryan Odom's side."
A jury found defendant guilty of first degree murder and torture (Pen. Code, §§ 187, subd. (a), 206), and found true the special circumstances of kidnapping and torture for imposition of a sentence of life without the possibility of parole. (§§ 190.2, subds. (a)(17)(B), (a)(18).) The court sentenced her to life in prison without the possibility of parole for the murder conviction, and life in prison with the possibility of parole for the torture conviction.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
Substantial Evidence of First Degree Murder
Defendant maintains there was insufficient evidence to support her conviction of first degree murder under any of the prosecution's three theories: aiding and abetting premeditated murder, felony murder by aiding and abetting a kidnapping, and torture murder. We affirm the conviction if there is substantial evidence supporting any one of these theories. (See People v. Guiton (1993) 4 Cal.4th 1116, 1128 [Cases "in which the jury has merely been 'left the option of relying upon a factually inadequate theory,' or also phrased slightly differently, cases in which there was an 'insufficiency of proof[,]' . . . do[] not require reversal if at least one valid theory remains." (Italics omitted.).]
"In determining whether the evidence was sufficient . . . to sustain a conviction . . . ' "we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. '[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' We do not reweigh evidence or reevaluate a witness's credibility." ' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182-1183 (Hajek), overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (People v. Vang (2001) 87 Cal.App.4th 554, 563.)
Substantial Evidence of Aiding and Abetting Murder
Defendant claims there was insufficient evidence of her aiding and abetting Osby's murder. She claims there was no evidence she shared or even knew about Armstrong's intent to kill Osby, and that at most, the evidence showed only that she intended Osby's false imprisonment.
" 'All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed.' (§ 31.) 'Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts.' '[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator,' and when the crime is murder, the 'aider and abettor must know and share the murderous intent of the actual perpetrator.' '[A]n aider and abettor will "share" the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.' " (People v. Maciel (2013) 57 Cal.4th 482, 518.)
The evidence showed defendant had motive, knowledge of the criminal purpose and shared intent, and was an active participant in the crime. Defendant believed Osby had stolen the family's electronics, and prior to the killing had retaliated for that perceived theft by stealing his bicycle. Defendant had another motive, as well. She was upset Osby had tried to prostitute her when she wanted to be his girlfriend. The evidence also showed defendant's advance knowledge and active participation. Ryan woke defendant after Osby was lured to the house, telling her "[Osby] was here, it is time for me to get up." Defendant was already in the bedroom when Osby entered, and she joined in beating Osby as soon as he opened the door and Ryan began punching him. Defendant retrieved tape so Armstrong could bind Osby, castigated Whittington for being "too nice" to Osby when she offered him water and a cigarette while he was still bound, and informed Ryan about Whittington's actions. Defendant knew Ryan and Armstrong left to get a car to take Osby away, and knew he was not allowed to leave until they returned. Defendant knew Armstrong had a gun, and tried to go with him when he and Bigoski put a bound and blindfolded Osby in the taxi van. Although Armstrong would not let her go with him, Ryan sent a taxi to pick her up about an hour later and bring her to Fairfield Taxi, where Armstrong was waiting. Defendant's letters to Whittington after she was arrested further evidenced her intent and active participation. She admitted the letters were about "how [she] and [Armstrong] killed somebody." One letter stated "when I did the things I did, I really, really didn't give a fuk! Honestly [and] still don't! [And] if I had to, I'd do it again [and] again . . . . [A]t 1st yeah, I was just going along but as soon as the gun was in my hand, I swear I felt like a whole new person!" Although defendant testified some of her statements in the letters were not true and she was just bragging to Whittington, the jury could reasonably disbelieve that testimony.
Considering all the evidence in the light most favorable to the judgment, and presuming the existence of every fact the jury could reasonably deduce from the evidence, we conclude the totality of the circumstances of the crime amply demonstrated defendant shared the intent to kill Osby.
Substantial Evidence of Aiding and Abetting Kidnapping
Defendant also maintains the evidence was insufficient to show she intended to aid and abet Osby's kidnapping, or that she "did anything to aid and abet the kidnapping." (Italics omitted.) She maintains "the record fails to disclose evidence that [defendant] knew a cab would be called or that Osby would be placed in it and taken away." She also claims she only asked to go with Armstrong when he bound and gagged Osby in the taxi because she was worried something might happen to Osby, not because she intended to aid in the kidnapping.
Initially, we note defendant conceded her "procurement of duct tape at Ryan Odom's request is evidence that she intended Osby's false imprisonment." And, whether or not defendant knew "a cab would be called" to take Osby away, she testified she knew "Armstrong and others were looking for some sort of car to move [Osby.]" (Italics added.) The evidence further showed that defendant knew the plan was that Osby was not going to be released. Before Ryan left the house with Armstrong, she told defendant that Osby could not be let go because he might retaliate. And, defendant testified she knew Osby "was not to be let go under any circumstance until a car got there." Defendant oversaw Osby's continued captivity while Ryan and Armstrong were gone. She was on the phone with Ryan throughout that time, giving her information about what was going on in the room. When Armstrong arrived with the taxi, defendant watched him and Bigoski load Osby, still bound, in the back of the taxi. Defendant knew Armstrong had a gun at that time, and she asked to go with him, but he would not let her. The jury could reasonably disbelieve defendant's testimony that her only reason for wanting to go along was because she was worried that something might happen to Osby. There was substantial evidence of defendant's aiding and abetting the kidnapping.
Substantial Evidence of Torture Murder
Defendant challenges her conviction of torture murder on two grounds, claiming torture murder requires the torture to be the sole cause of death, and that the evidence was insufficient to show torture.
"All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree." (Pen. Code, § 189.)
" 'To prove torture murder, the prosecution must establish " 'a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose.' " To prove a torture-murder special circumstance, the prosecution must show that defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. The jury may infer the intent to inflict extreme pain from the circumstances of the crime, the nature of the killing, and the condition of the victim's body.' [Fn. omitted.] ' "There is no requirement that the victim be aware of the pain." ' Thus, as to both torture murder and torture-murder special circumstances, the sufficiency inquiry is directed at evidence of the defendant's torturous intent. [¶] It bears emphasis that 'the trier of fact may find intent to torture based on all the circumstances surrounding the charged crime, including the nature and severity of the victim's wounds and any statements by the defendant revealing his state of mind during the crime.' For example, evidence that the defendant intentionally inflicted nonlethal wounds on the victim may demonstrate the requisite ' "sadistic intent to cause the victim to suffer pain in addition to the pain of death." ' " (Hajek, supra, 58 Cal.4th 1144, 1187-1188, italics omitted.)
Defendant asserts first degree murder by torture requires torture to be the sole cause of death, and therefore claims there was insufficient evidence supporting her conviction of torture murder. She relies on the following statement found in People v. Johnston (1957) 48 Cal.2d 78; " 'An essential element of murder by torture is that the acts of torture must be the cause of death of the victim.' " (Id. at p. 89, italics added.) That statement, however, was part of the court's quotation of the jury instructions, not part of the court's holding. Indeed, whether the torture was "a" cause of death or "the" cause of death was not an issue in that case.
Indeed, a conviction of torture murder does not require the torture to be the sole cause of death. "If a defendant's acts of torture were a concurrent cause of death, it is no defense that the conduct of some other person contributed to the death." (People v. Jennings (2010) 50 Cal.4th 616, 643.) In Jennings, expert testimony established the victim's cause of death was administration of "drugs, the physical injuries, and the malnutrition and emaciation . . . 'all working together.' " (Id. at p. 644, italics omitted.) The defendant did not dispute his physical abuse of the victim was insufficient to establish torture, but claimed "there [was] insufficient evidence that his torture was the 'but for'cause of [the victim's] death." (Id. at p. 642.) "[T]he 'substantial factor' rule for concurrent causes 'was developed primarily for cases in which application of the but-for rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result.' " (Id. at p. 644.) Thus, in Jennings the court concluded there was "sufficient evidence from which a reasonable jury could have concluded that defendant's torture was at least a substantial factor in [the victim's] death." (Ibid.)
Likewise, here, there was substantial evidence from which the jury could conclude that the torture of Osby was a substantial factor in his death. Indeed, Dr. Hogan testified that "either the blunt force trauma or . . . the gunshot wound to the head, either one separately would have killed him."
Defendant also claims there was insufficient evidence of intent to cause extreme pain or suffering. She claims the evidence showed only "minor" visible injuries to Osby, and that the "serious injuries caused by blunt force trauma were not visible until the internal examination at autopsy." "That they were invisible," she asserts, is "inconsistent with a finding [of] an intent to inflict cruel suffering" and "consistent with an explosion of violence."
" 'Courts have interpreted intent to inflict "cruel" pain and suffering as intent to inflict extreme or severe pain. Absent direct evidence of such intent, the circumstances of the offense can establish the intent to inflict extreme or severe pain. [¶] A jury may consider the severity of the wounds in determining whether a defendant intended to torture.' 'The intent to torture "is a state of mind which, unless established by the defendant's own statements (or by another witness's description of a defendant's behavior in committing the offenses), must be proved by the circumstances surrounding the commission of the offense, which include the nature and severity of the victim's wounds." "We have, however, cautioned against giving undue weight to the severity of the wounds"; severe injuries may also be consistent with the desire to kill, the heat of passion, or an explosion of violence.' " [¶] '[Penal Code] [s]ection 206 does not require permanent, disabling, or disfiguring injuries; "[it] only requires 'great bodily injury as defined in Section 12022.7'. . . . 'Abrasions, lacerations and bruising can constitute great bodily injury.' " ' Moreover, as the court in People v. Hamlin (2009) 170 Cal.App.4th 1412, 89 Cal.Rptr.3d 402 explained, 'no single act in the perpetrator's course of conduct may result in great bodily injury. But where the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed . . . .' " (People v. Odom (2016) 244 Cal.App.4th 237, 246-247 (Odom I).)
Defendant does not explain how internal injuries are inconsistent with an intent to inflict suffering. And, Osby's pain and suffering resulted from more than just the claimed "invisible" internal injuries. The evidence showed defendant, with her mother Ryan, engaged in a vicious ambush and beating of Osby. Defendant admitted punching him eight times, and other witnesses testified she also kicked him. After defendant retrieved tape so Armstrong could bind Osby, he was kept tied in the room for hours, bound, bleeding and crying. Osby was "pretty much beaten up . . . his nose [was] bleeding and his eye [was] beginning to swell up, and . . . he [was] crying." When Whittington gave Osby some water and a cigarette, defendant told her she was being too nice. The photographs of Osby's body reveal visible, external injuries, including his bloodied face and swollen eye.
Defendant further claims "[t]he facts of this case pale in comparison to other cases finding sufficient evidence of murder by torture . . . ." "There is no question there are cases in which the acts of torture were more gruesome. However, '[w]hen we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.' " (Odom I, supra, 244 Cal.App.4th at p. 248.) As we concluded in Odom I, "there is no dispute Osby suffered great bodily injury (indeed, fatal injuries), and the purpose of its infliction was revenge for his allegedly stealing the electronics. That the great bodily injury was inflicted with 'fists and feet' does not negate the substantial evidence of intent to cause cruel or extreme pain and suffering." (Ibid.)
The Torture Conviction and Torture Special Circumstance
Defendant asserts there was insufficient evidence to support either the torture conviction or the torture special circumstance finding, thereby violating her due process rights. She claims "the brief assault with feet and fists" was simply an "explosion of violence" not intended to cause cruel or extreme pain or suffering. As to the special circumstance, she claims there was "insufficient evidence [she] intended to kill Osby when she hit and kicked him," and therefore the court erred in not instructing the jury it must find she "harbored the specific intent to kill when she inflicted the torture."
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' The standard is the same under the state and federal due process clauses. We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (People v. Clark (2016) 63 Cal.4th 522, 610.)
Section 206 defines the crime of torture as follows: "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." The special circumstance of torture requires that "The murder was intentional and involved the infliction of torture." (§ 190.2, subd. (a)(18).)
Defendant does not dispute there was substantial evidence her purpose was revenge or persuasion. As to both the torture and torture special circumstance, she claims there was insufficient evidence of her intent to "inflict severe and prolonged pain." Defendant contends the "injuries inflicted were not serious" compared to other torture cases because Osby "did not suffer extreme pain," the "assault produced no scars and no disfigurement," and defendant "did not use any knife or sharp instrument to inflict painful non-fatal injuries." Defendant made the same claims with respect to the murder by torture conviction, and we reject them for the same reasons discussed above. The record showed substantial evidence of defendant's intent to inflict severe and prolonged pain.
As to the torture special circumstance, defendant asserts there was insufficient evidence of her intent to kill Osby "when she beat and kicked [him]." "If such intent existed," she asserts, "it only arose after the beating." Thus, she claims the court erred in not instructing the jury she must have had the intent to kill when she was beating and kicking Osby.
" '[T]he Legislature, by employing the broader language of section 190.2, subdivision (a)(18), intended to encompass (within the torture-murder special circumstance) acts of torture occurring within a larger time frame, including those that would not have caused death.' " (People v. Bemore (2000) 22 Cal.4th 809, 843; see People v. Hamlin (2009) 170 Cal.App.4th 1412, 1429 ["where the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed"].) Addressing the same issue in Odom I, we explained "Defendant's argument founders on the premise the torture consisted solely of the brutal beating. Osby was tortured through a course of conduct that did not end with the last blow." (Odom I, supra, 224 Cal.App.4th at p. 249.) "[T]orture can consist of a course of conduct and the intent to kill need not be conjoined with every act within that continuum." (Id. at p. 250.)
The evidence in this case likewise showed that Osby was beaten, kicked, bound and gagged, and imprisoned in the room for hours while he was crying and slowly bleeding to death. During that time, defendant ensured he was not allowed to leave and admonished Whittington for offering him a drink of water and a cigarette. Osby was tossed in a taxi while bound and blindfolded, and he was still trussed up when his body was discovered. "Thus, the jury could well have found a course of conduct whereby Osby was tortured over a sustained period of time." (Odom I, supra, 224 Cal.App.4th at p. 249.)
Further, given the severity and duration of the beating, and the statements defendant made in her jailhouse letters to Whittington afterwards, there was substantial evidence from which the jury could have concluded defendant formed the intent to kill during the beating itself. Indeed, defendant stated in one of her jailhouse letters to Whittington, "when I did the things I did, I really, really didn't give a fuk! Honestly [and] still don't! [And] if I had to, I'd do it again [and] again! [I]t don't [faze] me none!" "I was just going along but as soon as the gun was in my hand, I swear I felt like a whole new person!"
The Kidnapping Special Circumstance
Defendant asserts the trial court erred in instructing the jury on the kidnapping special circumstance. She claims the instructions "allowed a finding based on reckless indifference to human life, rather than intent to kill." As we concluded in Odom I, the "conflict in the language of the standard CALCRIM instructions . . . fail[s] to take into account the language of section 190.2, subdivision (a)(17)(M))." (Odom I, supra, 244 Cal.App.4th at p. 251.)
Section 190.2, subdivision (a)(17)(B) provides in relevant part: "(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, [¶] . . . [¶] (B) Kidnapping in violation of [s]ection[s] 207, 209, or 209.5." Subdivision (a)(17)(M) states, in turn: "To prove the special circumstance of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder." (Italics added.)
Section 190.2, subdivision (c) provides: "Every person, not the actual killer, who, with intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4." "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." (§ 190.2, subd. (d).)
The court instructed the jury with CALCRIM No. 703, which provides in part "If you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of kidnapping, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant participated in the crime, she acted with reckless indifference to human life." The court also instructed the jury with CALCRIM No. 731, regarding the special circumstance of intentional murder while engaged in the commission of kidnapping, which required intent to kill the victim. And, the court instructed the jury with CALCRIM No. 733, regarding the torture special circumstance, which required that defendant "intended to kill Keith Osby."
Based on our holding in Odom I, the Attorney General concedes the instructions were in error "because that combination [of instructions] could confuse a jury as to the state of mind required for kidnapping that facilitated—rather than was incidental to—a murder." The Attorney General further maintains, however, that, as in Odom I, this error was harmless.
"In determining whether any error was harmless, we ' "conduct a thorough examination of the record. If, at the end of that examination, [we] cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless." On the other hand, instructional error is harmless "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence." ' Our task is to review 'the trial evidence to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element . . . ." ' " (Odom I, supra, 244 Cal.App.4th at p. 257.)
The record reveals the error was harmless because the jury found true the torture special circumstance, which required a finding the defendant "intended to kill Keith Osby." (See People v. Chatman (2006) 38 Cal.4th 344, 392 ["The court instructed that a torture-murder special circumstance requires the intent to kill. When the jury found this special circumstance true, it found defendant intended to kill under other properly given instructions."].) And, we have rejected defendant's assertion there was no substantial evidence she shared the intent to kill Osby. The evidence showed she had motive to kill Osby based not only on his alleged theft of electronics from her family, but also his attempt to "pimp her out" when she wanted to be his girlfriend. Further, her actions during the beating, binding, and imprisonment of Osby in the room, the obstruction of any attempt to aid Osby, and her own statements in the letters to Whittington overwhelmingly demonstrated her intent to kill him. Thus, any instructional error was harmless under either the Chapman or Watson standards. (Chapman v. California (1966) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818.)
Defendant also claims the court erred in not instructing the jury regarding the factors for determining whether she was a "major participant" in the kidnapping as set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks). And, she asserts the evidence was insufficient to establish the kidnapping special circumstance because there was no substantial evidence she "acted with reckless indifference to human life or that she was a major participant in the kidnapping . . . ."
In Banks, decided after defendant's trial, the court considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty." (Banks, supra, 61 Cal.4th at p. 794, italics added.) Those factors, since incorporated into CALCRIM No. 703, are: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' was sufficiently significant to be considered 'major.' " (Id. at p. 803, fn. omitted.) The Banks court concluded there was no substantial evidence defendant was a major participant or acted with reckless indifference to human life. (Id. at pp. 807-808.)
As our colleagues in Division Two explained, "the fact that the drafters of the jury instructions chose to amend them in light of Banks . . . does not mean the amendments are constitutionally required." (People v. Price (2017) 8 Cal.App.5th 409, 451.) Price noted the Bench Notes to CALCRIM No. 703 indicate the "court does not have [a] sua sponte duty to define reckless indifference to human life." (Price, at p. 451.)
In contrast to Banks, where the court noted "[t]here was no evidence [appellant] intended to kill" (Banks, supra, 61 Cal.4th at p. 807), the jury in this case found defendant did have the intent to kill, and, as discussed above, substantial evidence supports that determination. Because the evidence showed defendant had the intent to kill, it is immaterial whether there was also evidence she acted with reckless disregard for life or was a major participant. (Id. at p. 798, fn. 4.) Thus, even if it were error to not instruct the jury with the Banks factors, any error was harmless.
Imposition of Life Without Parole Sentence Does Not Violate the Eighth Amendment
Defendant urges that 18-year-olds "share[ ] the characteristics of juveniles relied upon in Miller [v. Alabama (2012) 567 U.S. 460 (Miller)]," and therefore her sentence of life without possibility of parole is unconstitutional.
In Miller, the court held the "mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." (Miller, supra, 567 U.S. at p. 470.) The court explained there were "three significant gaps between juveniles and adults. First, children have a ' "lack of maturity and an underdeveloped sense of responsibility," ' leading to recklessness, impulsivity, and heedless risk-taking. Second, children 'are more vulnerable . . . to negative influences and outside pressures,' including from their family and peers; they have limited 'contro[l] over their own environment' and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child's character is not as 'well formed' as an adult's; his traits are 'less fixed' and his actions less likely to be 'evidence of irretrievabl[e] deprav[ity].' " (Id. at p. 471.)
Defendant maintains developments in psychology and brain science have established that "a youth's brain 'is not fully mature until an individual reaches his or her twenties.' " Thus, under "evolving standards of decency," defendant claims the Miller rationale is applicable to her since she was 18 years old at the time of the murder.
No case, however, has adopted defendant's proposed expansion of Miller, and several California cases have rejected it. In People v. Argeta (2012) 210 Cal.App.4th 1478 (Argeta), for example, the defendant contended because "the crime was committed only five months after [his] 18th birthday the rationale applicable to the sentencing of juveniles should apply to him." (Id. at p. 1482.) The appellate court disagreed, explaining "These arguments regarding sentencing have been made in the past, and while '[d]rawing the line at 18 years of age is subject . . . to the objections always raised against categorical rules . . . [, it] is the point where society draws the line for many purposes between childhood and adulthood.' Making an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude [the defendant's] sentence is not cruel and/or unusual . . . ." (Ibid; see People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221.) Most recently, in People v. Perez (2016) 3 Cal.App.5th 612, the 20-year-old defendant similarly urged that "new insights and societal understandings about the juvenile brain require us to conclude the bright line of 18 years old in the criminal sentencing context is unconstitutional." (Id. at p. 617.) The court held otherwise, adopting the reasoning of Argeta. (Ibid.) We agree with the reasoning of these cases, and likewise decline the invitation to extend the Miller rule to those 18 years of age or over.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.