People v. Barker

CourtCalifornia Court of Appeals
Citation182 Cal.App.3d 921,227 Cal.Rptr. 578
Decision Date25 June 1986
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jimmy A. BARKER, Defendant and Appellant. F003932.
Frank O. Bell, Jr., State Public Defender, Christine Zilius, Deputy State Public Defender, Sacramento, for defendant and appellant
OPINION

HOOVER, Associate Justice. *

The defendant appeals from a conviction in the Stanislaus County Superior Court of burglary (Pen.Code, § 459), robbery (Pen.Code, § 211), and mayhem (Pen.Code, § 203). Each count alleged that the defendant inflicted great bodily injury within the meaning of Penal Code section 12022.7 which was found true by the jury. Also, the information alleged two prior serious felony convictions within the meaning of Penal Code section 667, and a prior prison term within the meaning of Penal Code section 667.5(b), which the defendant admitted prior to trial.

Appellant was originally sentenced to 13 years 4 months and remanded back to court approximately five weeks later on order of the superior court for resentencing on the ground that appellant had previously been incorrectly sentenced. He was resentenced to the term of 20 years, computed as follows: six years (the upper base term for burglary), three years (enhancement for great bodily injury), five years (prior robbery conviction), one year (prior prison term), and five years (prior burglary conviction), all to run consecutively. The previously imposed sentences with respect to counts II and III, together with their respective enhancements, were confirmed by the court and stayed, such stay to become permanent upon appellant's successful completion of the principal term. The trial court also imposed a restitution order of $6,650 and a "fine" of $1,000 under Government Code section 13967.

Appellant alleges error both during the trial and at sentencing.

STATEMENT OF THE CASE

On August 10, 1983, appellant, his girlfriend Vicki, Leland Nicholson (Nicholson), and appellant's sister Marilyn Lozano (Lozano) went to Grandma's Bar on Herndon Road in Modesto. There they drank and played pool for approximately 45 minutes. Appellant, Vicki and Lozano left the bar for about five minutes while Lozano was taken to the scene of the crime and dropped off. Appellant and Vicki returned to the bar. Prior to leaving them, Lozano stated she was going to "turn a trick." About 20 to 30 minutes after returning to the bar, appellant received a phone call and after taking the call stated to Vicki and Nicholson, "Let's go." The three of them departed in Lozano's bluish-gray Isuzu.

Lozano had previously called and asked to spend some time at Ralph Taylor's house. Taylor was an 80-year-old widower and acquaintance of Lozano's. During the six months he had known her she had visited his home on numerous occasions. After being dropped off at Taylor's by appellant and Vicki, Lozano proceeded to engage Taylor in activities calculated to facilitate the crime. Moving to a bedroom to watch a better television set, Lozano raised the volume even over Taylor's protests; the air conditioner was turned on, and the front door opened (although Taylor insisted the night chain be fastened). With the house now less than secure and under cover of the noise level, Lozano left to make sure the front door was opened and returned within 5 to 10 minutes. Lozano then enticed Taylor into some form of sexual activity which resulted in him being tied up, hands and feet together, and lying on the bed.

With the 80-year-old victim helpless, appellant entered the home by climbing through a window over the sink. Taylor testified to being brutally beaten, kicked and struck with a beer bottle.

Shortly after appellant had entered Taylor's home, Lozano came running out the front door screaming for Nicholson. Following Lozano into the house, Nicholson heard an old man screaming and, upon entering the bedroom, observed appellant kicking Taylor as he lay on the floor. The only light on in the bedroom was the television, and appellant was shouting that he wanted Taylor's wallet. Appellant was also holding a gun against Taylor. When Nicholson asked appellant what was going on, appellant stated he wanted the combination to the safe. Lozano showed Nicholson where Taylor's safe was, and Nicholson picked it up and carried it out to the car which Lozano had backed up to the house. While appellant was kicking and striking Taylor, Taylor was lying on the floor moaning and saying, "Give me a minute"; and "Let me think where the wallet is at." Nicholson came back into the bedroom and said to appellant, "Leave him alone"; and "Let's go." After Nicholson told appellant he had the safe and said "Let's get out of here", appellant continued to kick Taylor in the face. Lozano, Nicholson and appellant then left the house and drove off with Vicki in Lozano's car. As they were driving away, appellant swore angrily at Lozano and told her she was stupid and questioned why she had failed to open the front door.

The portable safe taken from Taylor's home contained, in addition to various papers, some $300 to $400 cash. Taylor had kept the safe in the second bedroom of his house. The lock on this bedroom door, which Taylor ordinarily kept locked, had been pried loose.

After the crime Taylor managed to free himself and cross the street, while bleeding heavily, to summon help. Taylor was seriously injured; his nose was severely cut and nearly torn off, one eye was bloodied and swollen shut, and he remained in intensive care for five to seven days.

The crime scene investigation corroborated Taylor's version of the attack and turned up appellant's right index fingerprint on the neck of a broken beer bottle. After being admitted to the hospital and still in pain, Taylor attempted to identify those responsible. He was unable to identify a photograph of Lozano and incorrectly identified Kathy Buchanan, Lozano's sister, as Lozano's mother. Taylor did describe Lozano, who he knew as Marilyn, as a female Caucasian, approximately 30 years, 5 feet 7 inches to 5 feet 9 inches, 125-135 pounds, and with blond hair. Lozano, who is a blond Caucasian, described herself as 5 feet 6 inches tall and weighing 130 pounds. Taylor correctly identified Lozano out of a photographic lineup on August 24, 1983.

Neighbors supplied other details of the crime and clues to the identity of Taylor's attackers.

On September 8, 1983, appellant, in custody in Shasta County for robbery and kidnapping, was interviewed by Detective Mac Reece (Reece), and after a waiver of Miranda rights, confessed to his role in the beating and robbery of Taylor.

Appellant's defense essentially claimed he was innocent but had confessed due to threats and pressure made indirectly by Nicholson and out of concern for his sister (Lozano) and Vicki.

The issues raised on appeal are (1) whether the appellant's confession was voluntary; (2) whether the trial court committed reversible error in instructing the jury on aiding and abetting; and (3) whether the appellant was properly sentenced, including the imposition of a restitution order of $6,650 and a "fine" of $1,000.

I. THE VOLUNTARINESS OF APPELLANT'S CONFESSION

On September 8, 1983, Stanislaus County Sheriff's Detective Reece and Redding Police Detective Craig Wooden (Wooden) interviewed appellant at the Shasta County Sheriff's Department in Redding, California. Appellant was in custody for a kidnapping and robbery in Shasta County.

After hearing, understanding and waiving his Miranda rights, appellant confessed to his part in the robbery and beating of Taylor. During his interview with Reece, appellant asked for and received a promise that Vicki would not be charged for the Taylor robbery if he, appellant, truthfully related the events of that evening. Appellant now contends the trial court erred in finding his confession voluntary and that the prosecution did not satisfy its burden of establishing voluntariness beyond a reasonable doubt as required by People v. Jimenez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672.

Appellant argues his confession was elicited by virtue of psychological pressure exerted by Detectives Reece and Wooden through implied threats that Vicki would be prosecuted if appellant did not confess. The trial court received testimony from both appellant and Reece, reviewed a transcript of the confession, and listened to the tape recording of the confession before concluding that appellant's confession was voluntary beyond a reasonable doubt.

Without redigesting every contention presented to the trial court and contained in appellant's briefs on appeal, there appear to be three cognizable points upon which the determination of voluntariness turns.

The first point is the fact that Reece did not inform appellant of his previous decision not to charge Vicki with the Taylor robbery regardless of appellant's statements, but only informed appellant of his agreement to drop charges for a truthful statement.

The second area of interest concerns whether or not appellant's mental condition, with respect to Vicki, affected the voluntariness of the confession.

Lastly, there is a minor issue regarding appellant's physical state (appellant had recently sustained a bullet wound in his arm).

The transcript of appellant's confession reveals that appellant waived his Miranda rights and indicated to Reece that he was willing to talk to Reece. Following Reece's inquiry about appellant's bullet wound, 1 appellant said to Reece "You got uh, uh, a warrant, uh, a warrant for my old lady down there for (unintelligible)." Detective Reece told appellant that he "just wanted to talk to Vickie, um, I know she was there. I haven't got an active warrant on Vickie yet." Appellant then responded "I want to square up everything right now...

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