People v. Barrera

• Citation: 18 Cal.Rptr.2d 395,14 Cal.App.4th 1555
• Decision Date: 15 April 1993
• Docket Number: No. F017322,F017322
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Johnny BARRERA, Defendant and Appellant.

Page 395

18 Cal.Rptr.2d 395

14 Cal.App.4th 1555

The PEOPLE, Plaintiff and Respondent, v. Johnny BARRERA, Defendant and Appellant.

No. F017322.

Court of Appeal, Fifth District, California.

April 15, 1993.

As Modified on Denial of Rehearing April 28, 1993.

Review Denied July 15, 1993.

[14 Cal.App.4th 1559] Charles M. Bonneau, Under appointment by the Court of Appeal, Sacramento, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., W. Scott Thorpe and Janett H. Shaw, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GILDNER, Justice. ^*

INTRODUCTION

On June 5, 1990, the electorate adopted Proposition 115, the "Crime Victims Justice Reform Act." (Raven v. Deukmejian (1990) 52 Cal.3d 336, 340, 276 Cal.Rptr. 326, 801 P.2d 1077.) Among its avowed purposes, as stated in the preamble, was " '... to create a system ... in which violent criminals receive just punishment, ...' " (Id. at p. 342, 276 Cal.Rptr. 326, 801 P.2d 1077.) Toward that end, PENAL CODE SECTION 206¹, defining the crime of torture, and section 206.1, prescribing its punishment, were enacted.

Section 206 provides:

"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."

Section 206.1 provides:

"Torture is punishable by imprisonment in the state prison for a term of life."

Appellant, Johnny Barrera, mounts a broad attack upon these statutes. He contends: section 206 is vague and overbroad and violates equal protection guarantees of the state and federal Constitutions, that prosecutions cannot be brought because other statutes cover the same conduct it prohibits and that its elements are improperly set forth in CALJIC No. 9.90. He also argues that punishment for torture constitutes cruel and/or unusual punishment under the state and federal Constitutions. He additionally asserts sentencing error in that the trial court failed to state reasons for imposition of the upper term when sentencing on a gun use enhancement and, in his supplemental brief, that the sentence is an indeterminate life term, not 15 years to life as reflected in the judgment and commitment order.

We will affirm in all particulars except sentencing.

STATEMENT OF THE CASE

In November 1991 Barrera was tried with a codefendant on a multi-count amended information alleging, among other felonies and enhancements, torture, a violation of section 206. The jury found him guilty of that and other counts, and found true, inter alia, a gun use enhancement (§ 12022.5). Prior felony convictions were found true by the court. Barrera was sentenced to an indeterminate term of 15 years to life on the torture charge and the upper term on the gun enhancement. Other crimes resulted in consecutive sentences or stayed punishment.

STATEMENT OF FACTS

The victim, Lawrence Rodarte, and his sons Jessie (six years old) and Lawrence, Jr. (eight years old) were in bed about 11:30 p.m. on the night of June 30, 1991. The boys were asleep on sofas in the living room. Rodarte got up and went outside for fresh air and heard a noise. ² Rodarte saw four men approach him, one of whom was Barrera. Rodarte greeted Barrera by name. One of the men was wearing a ski mask. Rodarte ran back into the apartment, pursued by the men. He was unable to latch the door because a shotgun barrel was shoved against it. Lawrence, Jr. awoke and began to cry as the men entered and his father announced they were being robbed. He told his son to call 911.

Rodarte was grabbed by the hair and forced to sit in a chair. Codefendant held a sawed-off shotgun against Rodarte's head, and another robber held a knife against Rodarte's throat. Barrera demanded money, and Rodarte gave him $70 that was in his pocket. Defendant asked if Rodarte had any weapons and threatened to shoot Rodarte if he did not tell him where the guns were. Lawrence, Jr. said a rifle was in the bedroom, and Barrera went to the bedroom and brought back a .22-caliber rifle. ³

Barrera stood in front of Rodarte, pulled the trigger, and stated the gun did not work. When Rodarte told him the safety for the gun was on, Barrera released it, pointed the weapon at Rodarte's right leg, and fired. Rodarte's leg was broken when struck by the bullet, and he bled profusely. Barrera asked if Rodarte's leg hurt, demanded more money, and when Rodarte refused to tell him where the money was, Barrera threatened to shoot Lawrence, Jr.

Rodarte gave in to the threat and started to rise but was shoved into the chair and told he would be killed if he moved. He pleaded with the robbers that they spare his son. He told Barrera the money was outside in the work shed and a key to the shed was in a cabinet.

When the codefendant could not find the key, Rodarte was forced to walk to the shed (about 15 feet) to find the key. Barrera kicked open the door to the storage building and took approximately $300 hidden in a sofa stored in the building. Barrera also kept the .22-caliber rifle.

All the robbers left except the one wearing the ski mask and holding a knife. ⁴ This robber jabbed Rodarte a few times with the knife, leading Rodarte to believe the man remained behind in order to stab him. The last time Rodarte was jabbed, he blocked the blow and fell down. The robber then left.

Unable to walk back to the house, Rodarte told Lawrence, Jr. to call police, which he did. Rodarte was transported to Valley Medical Center, where he was hospitalized for three days. When released, his leg was in a cast and he had to walk with the aid of crutches. He had suffered an open fracture of his right tibia.

While still recuperating, on August 18, 1991, Rodarte was confronted by codefendant and another individual when they came to Rodarte's apartment. Present with Rodarte were two friends and Lawrence, Jr. Lawrence, Jr. recognized one of the men from the robbery and told his father. Rodarte warned those with him to get out of the way because he was not sure what was going to happen. The men were looking for an individual named Larry. As he was turning to leave, the codefendant threatened to kill Rodarte if Barrera was sent to prison. The codefendant also told Rodarte that it was he, not defendant, who shot him.

Rodarte admitted using PCP in June and August 1991, but denied being involved in the sale of drugs. Prior to testifying, but after the robbery, Rodarte shot himself in the ear while drunk. At the time of trial, Rodarte had charges pending for gross negligence in the discharge of a firearm (§ 246.3).

The officer responding to the scene of the robbery and shooting testified Rodarte did not mention money being taken from his pocket. Similarly, Rodarte did not mention being jabbed with a knife. Lawrence, Jr. told the officer he did not recognize the robbers and that he had never seen any of them before the night of the robbery. The officer was told by Rodarte that the robbers left on foot.

Rodarte's second statement was taken by Fresno Police Detective Krug on July 1, 1991. Rodarte identified Barrera, stated $200 was taken from the sofa, and that the men left in a primered black Toyota or Nissan. Rodarte stated there was a possibility Barrera and he had been involved in past marijuana transactions. Barrera had worked around the apartment building and was on the premises earlier on the day of the robbery and shooting. Krug saw no visible lacerations on Rodarte, although Rodarte stated the robbers struck him around the head with the gun butt. Lawrence, Jr. also testified the robbers hit his father on the head.

Rudy Gonzales, Rodarte's neighbor, testified Barrera had been to Rodarte's apartment in the past. Each time, Barrera was looking for marijuana, and Rodarte responded by telling Barrera he was no longer using it.

The victim's estranged wife, Claudine Rodarte, testified Rodarte was dishonest.

I Section 206 is Neither Vague Nor Overbroad

Barrera contends that under state and federal constitutional principles section 206 is vague and overbroad. ⁵ He argues that "torture" requires, as part of its definition, "the length of pain or the manner in which it is inflicted." "Cruel pain," he says, is vague. So is "any sadistic purpose," which is also overbroad as a "catch-all" in cases where "motive or purpose of an attack cannot be determined."

The rule covering challenges to statutes based upon vagueness is well settled, and was fairly recently set forth by our Supreme Court:

"Article I, section 7, of the California Constitution and the Fourteenth Amendment to the United States Constitution both assure that no person shall be deprived of 'life, liberty, or property without due process of law.' Among the implications of this constitutional command is that the state must give its citizenry fair notice of potentially criminal conduct. This requirement has two components: 'due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.' (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269 [198 Cal.Rptr. 145, 673 P.2d 732], cert. den. 466 U.S. 967 [104 S.Ct. 2337, 80 L.Ed.2d 812]; see also Kolender v. Lawson (1983) 461 U.S. 352, 357-358 75 L.Ed.2d 903, 908-909.)" (Walker v. Superior Court (1988) 47 Cal.3d 112, 141, 253 Cal.Rptr. 1, 763 P.2d 852.)

Section 206 enjoys "presumptive validity," and " '... is sufficiently certain if it employs words of long usage or with a common law meaning "notwithstanding an element of degree in the definition as to which estimates might differ." [Citations.]' " (People v. Ballard (1988) 203 Cal.App.3d 311, 316, 317, 249 Cal.Rptr. 806.)

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