Opinion
NOT TO BE PUBLISHED
Superior Court County (Super. Ct. No. CR49433) of Santa Barbara J. Brodie, Judge
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Supervising Deputy Attorney General, Jason C. Tran, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
David James Ziesmer appeals a judgment following conviction of first-degree murder, street terrorism, conspiracy to being an accessory to murder, and solicitation of murder, with findings of special circumstances, personal use of a deadly weapon, commission of crimes to promote a criminal street gang, and a prior felony strike conviction. (Pen. Code, §§ 187, subd. (a), 189, 186.22, subd. (a), 182, subd. (a)(1), 32, 653f, subd. (b), 190.2, subd. (a)(17)(A) & (B), 12022, subd. (b)(1), 186.22, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) We affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Ziesmer and Michael Bridge ford were members of a white-supremacy criminal street gang known as the "Skinhead Dogs" ("SHD"). Ziesmer, whose gang moniker was "Dopey," was the gang's leader, and Bridge ford, whose gang moniker was "Demon," became his close friend and follower. Bridget Callahan, Stacey Warnock, and Jennifer Pinger were associated with Ziesmer, Bridge ford, and the SHD. Ziesmer, Bridge ford, and their associates pursued a drug-involved lifestyle, including frequent use of methamphetamine and heroin.
On October 14, 1998, 17-year old Nicole Hendrix and her boyfriend Russell Nething checked into a Ventura motel room. Hendrix later drove Nething's pickup truck to deliver drugs to Ziesmer and Bridge ford, and then returned to the motel room with Warnock. The two women used drugs and later walked to a nearby convenience store. When a police officer drove by, Warnock retreated to the motel room. The officer stopped and arrested Hendrix for being under the influence of drugs. Another police officer believed that Warnock was a "wanted person," and he pursued her to the motel room. There he arrested Warnock and Nething on drug and outstanding warrant charges.
The following morning, Warnock telephoned Ziesmer, Bridge ford, and Callahan from jail. She accused Hendrix of informing on her and leading police officers to the motel room.
Police officers released Hendrix to the custody of her mother. Following her release, Hendrix picked up Callahan and retrieved property that Nething had stolen to finance his drug habit. Hendrix planned to sell the stolen property and bail Nething from jail. Callahan telephoned Ziesmer, however, and proposed to sell Nething's stolen property to raise bail for Warnock.
Pinger and another SHD associate, Nicole Echols, picked up Ziesmer and Bridge ford and drove them to Callahan's residence. Hendrix sat unconscious in Nething's pickup truck. Callahan informed Ziesmer that she gave Hendrix "some pills and she [would] be out in a little while" and then they could take Nething's pickup truck.
Later that day, Callahan drove Nething's pickup truck and picked up Ziesmer and Bridge ford The truck contained stolen property claimed by Nething. Hendrix, who was still unconscious, was also inside. Callahan stated that Hendrix had taken "a psych med" that had "knocked her out." Ziesmer took money, drugs, and jewelry from Hendrix's pockets. He also spit on her, struck her, and called her a "rat." Callahan drove them to the City Center Motel and registered a room in her name.
Ziesmer and Bridge ford carried Hendrix and the stolen property into the motel room. Inside, Callahan telephoned prospective buyers for the stolen property. Ziesmer attempted to maintain Hendrix's unconsciousness by blowing a sedative pill into her anus with a hollowed-out pen. When the attempt failed, he and Bridge ford placed her into the closet. While Hendrix was in the closet, persons visited the motel room and purchased the stolen property or exchanged drugs for it.
Shortly before midnight, Hendrix regained consciousness. She was angry and wanted to leave the room. Hendrix telephoned her mother and stated that she would be home soon. As she attempted to leave, Ziesmer forced her into the bathroom. He and Bridge ford punched Hendrix in the head and Callahan spoke with her to "calm her down." Ziesmer later left the bathroom and retrieved a folding knife, stating that "[t]his bitch gotta go."
Ziesmer reentered the bathroom and sliced Hendrix's neck and stabbed her in the eye, heart, and ear. He ordered Bridge ford to restrain Hendrix as he repeatedly stabbed her. Within a short time, Ziesmer nearly decapitated the dying Hendrix.
Ziesmer, Bridge ford, and Callahan then washed the blood from Hendrix and wrapped her body in the motel room linens. They placed her body in the bed of Nething's pickup truck with the remainder of the stolen property, and drove to Santa Barbara. There Ziesmer obtained different clothing and a green tarp to cover Hendrix's body. The following day, they returned to Ventura and purchased a trash can and cement. They placed Hendrix's body in the trash can and filled it with cement.
On October 20, 1998, Ziesmer and Bridge ford assaulted a black man on the street and were arrested by police officers. Officers noted that Bridge ford had fresh scratch marks on his face, ear, and left hand. While confined in county jail, Ziesmer arranged for disposal of the trashcan containing Hendrix's body. Callahan and two SHD associates pushed the trash can over a mountainous ravine near Ojai.
Approximately six months after her death, law enforcement officers found Hendrix's skeletal remains in a rugged wilderness area of the Los Padres National Forest. The officers also found a trash can, pieces of cement, clothing, a tarp, and duct tape scattered nearby. A forensic pathologist later examined the remains and opined that Hendrix's death was the result of a homicide. The pathologist noted that Hendrix suffered extensive facial bone fractures consistent with being struck or kicked in the face. A forensic toxicologist determined that Hendrix's brain tissue contained traces of methamphetamine and a central nervous system depressant, Valium.
Bridge ford and Callahan eventually became government informants against Ziesmer. In recorded conversations and in letters to Bridge ford, Ziesmer discussed killing witnesses regarding the murder. In a letter to Bridge ford, Ziesmer also discussed killing Callahan, whom he suspected of being an informant. He stated: "I want her whacked, too . . . ." Ziesmer arranged for a weapon to kill Callahan. He wrote to an SHD associate, Fred Charlon, concerning Callahan's address, physical description, and obtaining the necessary weapon to kill her. Charlon was also a government informant.
Ziesmer was interviewed by police officers. He admitted stabbing Hendrix to death because she threatened to report him to the police and he wanted to avoid a "third strike." The prosecutor played a videotape of the recorded interview at trial.
In testimony before the grand jury, Ziesmer admitted stabbing Hendrix to death. He also stated that he stomped on her head with his boots. Ziesmer explained that he killed Hendrix to prevent her from being a witness against him. Ziesmer admitted taking drugs and money from Hendrix when she was unconscious. He also stated that he solicited an associate gang member to kill Callahan.
The jury convicted Ziesmer of first-degree murder, street terrorism, conspiracy to being an accessory to murder, and solicitation of murder. (§§ 187, subd. (a), 186.22, subd. (a), 182, subd. (a)(1), 653f, subd. (b).) It also found that Ziesmer committed the murder during the commission of robbery and the commission or attempted commission of kidnapping. (§ 190.2, subd. (a)(17) (A) & (B).) It found that Ziesmer personally used a deadly weapon to commit the murder and that he committed the conspiracy and solicitation offenses to promote a criminal street gang. (§§ 12022, subd. (b)(1), 186.22, subd. (b)(1).) In a separate hearing, Ziesmer admitted suffering a prior serious felony conviction for robbery, alleged for purposes of recidivist sentencing. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The trial court sentenced Ziesmer to life imprisonment without the possibility of parole, plus a determinate sentence of 18 years and 8 months. The trial court also imposed a restitution fine, parole revocation restitution fine, probation investigation fee, and restitution. It awarded Ziesmer 1,829 days of presentence custody credit.
Ziesmer appeals and contends that: 1) the trial court erred by not instructing that Callahan was an accomplice whose testimony required corroboration; 2) the trial court erred by instructing regarding simple kidnapping based upon dictum in People v. Oliver (1961) 55 Cal.2d 761, 766; 3) the trial court erred by not defining "illegal purpose," "illegal plan," and "illegal intent," as stated in the instruction regarding simple kidnapping; 4) the trial court erred by instructing that an unconscious person could be the victim of a robbery; 5) the trial court erred by not instructing regarding jury unanimity and which act constituted a robbery; 6) insufficient evidence of kidnapping or robbery exists; and 7) insufficient evidence supports the criminal street gang enhancement of section 186.22, subdivision (b).
DISCUSSION
I.
Ziesmer argues that Callahan was an accomplice as a matter of law, requiring that her testimony be corroborated. (§ 1111 ["An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."].) He acknowledges that Callahan did not testify at trial, but asserts that her statement that she gave Hendrix "some pills and she [would] be out in a little while" is an extra judicial statement of an accomplice. (People v. Belton (1979) 23 Cal.3d 516, 526 ["testimony" within § 1111 includes an accomplice's extra judicial statements].) Ziesmer contends the trial court's failure to instruct regarding accomplice testimony and Callahan's statement is prejudicial.
For several reasons, we reject this argument. First, Callahan's statement is not "testimony" within the meaning of section 1111. (People v. Brown (2003) 31 Cal.4th 518, 555.) "Testimony" includes out-of-court statements "made under suspect circumstances" that are used as substantive evidence of guilt. (Ibid.) A statement made in private conversation and not to police officers in the hope of obtaining leniency is not "testimony" within the meaning of section 1111. (People v. Davis (2005) 36 Cal.4th 510, 547.)
Statements made in furtherance of a conspiracy or statements that are declarations against penal interest also do not require corroboration because they are not "consciously self-interested and calculated," as usually is the case with accomplice testimony. (People v. Brown, supra, 31 Cal.4th 518, 555-556.) Here the trial court properly determined that Callahan's statement was that of a co-conspirator because it implicated her in activity to obtain Hendrix's property. Callahan's statement also qualified as a declaration against interest because it subjected her to the risk of civil or criminal liability. (Ibid.)
Finally, any error in not instructing upon accomplice liability is harmless because there is sufficient corroborating evidence of Callahan's statement. (People v. Brown, supra, 31 Cal.4th 518, 556.) Ziesmer admitted in a recorded police interview that he attempted to drug Hendrix at the motel room in order to sell her stolen property.
II.
Ziesmer contends that the trial court erred by instructing that substantial movement of an adult, unconscious due to voluntary intoxication, may constitute simple kidnapping. (§ 207, subd. (a).) He argues that the trial court erred by basing the instruction upon dictum in People v. Oliver, supra, 55 Cal.2d 761, 766. Ziesmer asserts that no published judicial decision involves the kidnapping of an adult who is unconscious through voluntary intoxication. He points out that the crime of robbery requires an element of force or fear, and that theft from a voluntarily unconscious victim is not robbery. (People v. Kelley (1990) 220 Cal.App.3d 1358, 1368-1369.) Ziesmer contends that the error is prejudicial and requires reversal of the kidnapping special circumstance and first degree murder.
The trial court instructed that "If the person moved is incapable of consenting by reason of immaturity or mental condition, then the person moving that person is guilty of kidnapping only if the act was done for an illegal intent regarding that person. [¶] The amount of force required to kidnap an unresisting person is the amount of force required to take and carry the person away a substantial distance for an illegal purpose or with an illegal plan. [¶] The People have the burden to prove that a person incapable of consenting was taken or moved by force . . . ."
The trial court based the instruction upon this persuasive dictum in People v. Oliver, supra, 55 Cal.2d 761, 765-766: "If I forcibly carry a helplessly intoxicated man lying in the middle of the highway to a place of greater safety, if I forcibly take a delirious man or one who is unconscious to a hospital or to a doctor, nobody again could reasonably believe that it was the intention of the Legislature that for any of these acts I could be convicted of kidnapping. But if I forcibly take one of such persons and carry him in the same manner for an evil and unlawful purpose, everybody would again agree that my conviction of kidnapping would fall within the legislative design."
The trial court did not err. Our Supreme Court generally has approved Oliver, concluding that "[t]he fact that the Legislature may not have considered every factual permutation of kidnapping . . . does not mean the Legislature did not intend for the statute to reach that conduct." (In re Michele D. (2002) 29 Cal.4th 600, 606.) In re Michele D., supra, 29 Cal.4th 600, 610, footnote 3, also cited this reasoning of a foreign state decision: "'If we were to follow appellant's reasoning to its logical end, children, incompetents, physically handicapped, and the unconscious would not be protected by the statute if they did not resist in any manner . . . . It would ill serve the law to exclude as kidnappers those who prey on persons who cannot resist.'" We conclude that the dictum of Oliver is persuasive and properly supports the trial court's kidnapping instruction here.
III.
Ziesmer argues that the trial court erred by not defining the terms "illegal purpose," "illegal plan," and "illegal intent," within the instruction regarding simple kidnapping: "If the person moved is incapable of consenting by reason of immaturity or mental condition, then the person moving that person is guilty of kidnapping only if the act was done for an illegal intent regarding that person. . . . The amount of force required to kidnap an unresisting person is the amount of force required to take and carry the person away a substantial distance for an illegal purpose or with an illegal plan. . . ." (Italics added.) He asserts that there is a reasonable probability that a reasonable juror would not understand the terms and would equate them with an "evil reason" or a misdemeanor criminal offense. Ziesmer adds that the error is prejudicial under any standard of review because he asserts that "the circumstances under which Hendrix was initially moved are obscure and subject to wide-ranging interpretation."
The trial court did not err. In the absence of a request, the trial court is not required to instruct regarding words or phrases that are commonly understood and not used in a technical sense. (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.) "'A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation].'" (Id., at p. 1023.) Moreover, if defendant thinks that the instruction requires amplification or clarification, he must request amplifying or clarifying language to preserve the point for appeal. (People v. Horning (2004) 34 Cal.4th 871, 909.)
Here the words illegal, purpose, plan and intent are commonly understood words and are not used in a technical sense in the instruction. Absent a technical meaning, the trial court had no duty to define them. Moreover, simple kidnapping, unlike aggravated kidnapping, requires no proof of an underlying crime. (People v. Martinez (1999) 20 Cal.4th 225, 232.)
IV.
Ziesmer contends that the trial court erred by instructing that a voluntarily intoxicated person could be the victim of a robbery. (People v. Kelley, supra, 220 Cal.App.3d 1358, 1368-1369 [voluntarily intoxicated person whose property is taken is a victim of theft, not robbery].) He also complains of the trial court's instruction that "[t]he involuntary administering of a drug to a person to overcome the other person's resistance. . . ." suggests that the person administering the drug must be doing so involuntarily. In addition, Ziesmer argues that the trial court erred by instructing that to constitute a robbery, "the gaining possession of, retaining or carrying away [of property] must be accomplished by force or fear."
The trial court instructed that "The showing of 'force' for a robbery is not limited to external force. A poison or intoxicant, although internally applied, may also serve as a means to achieve the same goal and render the taking of personal property a taking against the will of the victim by 'force.' [¶] The involuntary administering of a drug to a person to overcome the other person's resistance constitutes 'force' within the purview of robbery."
Ziesmer may not complain of the juxtaposition of the words "involuntary" and "administering" because he did not seek clarification of the instruction in the trial court. (People v. Lewis (2006) 39 Cal.4th 970, 1037.) In any event, there is no reasonable likelihood that a reasonable juror misunderstood and misapplied the instruction as Ziesmer suggests. (People v. Young (2005) 34 Cal.4th 1149, 1202 [standard of review].) We presume the jury read the entire sentence of the instruction that refers to the "involuntary administering of a drug to a person to overcome the person's resistance. . . ."
Moreover, there is sufficient evidence and all reasonable inferences therefrom that Callahan misrepresented the nature of the "psych" medication that Hendrix ingested. Hendrix busily spent the afternoon marshalling her boyfriend's stolen property and trying to arrange his bail with a bail bondsman. She was angry and upset upon gaining consciousness in the motel room and attempted to leave. It is a reasonable inference from this evidence that she did not knowingly ingest a "psych" drug that would leave her unconsciousness for most of the day.
Finally, there is sufficient evidence that Ziesmer used force to retain the stolen property when he attempted to drug Hendrix in the motel room, put her in the closet, and later pulled her inside the room and "threw her" into the bathroom when she tried to escape. (People v. Webster (1991) 54 Cal.3d 411, 441-442 [defendant's forceful act to retain or escape with stolen property constitutes robbery].)
V.
Ziesmer argues that the trial court erred by not instructing with CALJIC No. 17.01, regarding jury unanimity and the particular act that constituted a robbery. He asserts that the evidence supported three different acts of robbery – the taking of drugs and property from Hendrix's pockets as she lay unconscious; attempting to sedate her in the motel room; and seizing her as she attempted to leave the motel room.
A jury may convict a defendant of first degree murder without making a unanimous choice of one or more of several theories proposed by the prosecutor—deliberate and premeditated murder or murder committed in the course of a felony. (People v. Edwards (1991) 54 Cal.3d 787, 824.) It is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as defined by law. (Ibid.) This rule satisfies federal constitutional concerns. (People v. Majors (1998) 18 Cal.4th 385, 408.)
Assuming that jury unanimity is required regarding the particular act of robbery, any possible error in failing to instruct with a unanimity instruction is harmless beyond a reasonable doubt. (People v. Davis, supra, 36 Cal.4th 510, 563 [standard of review].) In his recorded statements to police officers, Ziesmer admitted that he took property and drugs from Hendrix's pockets, attempted to sedate her in the motel room, and "threw her" into the motel bathroom. There is no reasonable basis for a juror to accept some but not all of Ziesmer's admissions.
VI.
Ziesmer argues that there is insufficient evidence of kidnapping and robbery. He asserts that federal constitutional principles preclude his retrial of special circumstances.
As discussed, ante., an unconscious adult can be the victim of a kidnap, and there is sufficient evidence that Ziesmer kidnapped Hendrix. Moreover, there is sufficient evidence that Hendrix was deceived or tricked into ingesting "psych" medication, and the taking and retaining of her stolen property constituted a robbery.
VII.
Ziesmer asserts that there is insufficient evidence that he acted to further the interests of the SHD, as required by the criminal street gang enhancement of section 186.22, subdivision (b). He agues that his motive for soliciting Callahan's murder was personal–to avoid his prosecution for the Hendrix murder. Ziesmer adds that the state may not criminalize mere membership in a gang.
The criminal street gang enhancement of section 186.22, subdivision (b)(1), applies if the crime for which the defendant was convicted was "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." The enhancement may be satisfied if the evidence establishes that defendant intended to commit the crime in association with other gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jury may "reasonably infer requisite association from the very fact that defendant committed charged crimes in association with fellow gang members"].) "[O]ne gang member would choose to commit a crime in association with other gang members because he could count on their loyalty." (Id., at p. 1197.)
Here the evidence established that Ziesmer, the "shot-caller" of the SHD street gang, determined that Callahan should be killed because she had turned informant and cooperated with authorities in securing his conviction. He arranged for an associated gang member of the Nazi Lowriders gang to obtain a weapon from another gang member and use that weapon to kill Callahan. Sufficient evidence supports the gang enhancement. (People v. Augborne (2002) 104 Cal.App.4th 362, 371 [standard of review of sufficiency of the evidence applies to criminal street gang enhancement].)
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.