People v. Curry

• Decision Date: 31 December 2007
• Docket Number: No. C052801.,C052801.
• Citation: 70 Cal.Rptr.3d 257,158 Cal.App.4th 766
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dwayne Michael CURRY et al., Defendants and Appellants.

70 Cal.Rptr.3d 257

158 Cal.App.4th 766

The PEOPLE, Plaintiff and Respondent, v. Dwayne Michael CURRY et al., Defendants and Appellants.

No. C052801.

Court of Appeal, Third District.

December 31, 2007.

As Modified on Denial of Rehearing January 22, 2008.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Titenesha Russell.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant Terry Buford.

Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Curry.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Deputy Attorney General, for Plaintiff and Respondent.

CANTIL-SAKAUYE, J.

The four defendants, Tashara Boone, Terry Buford, Dwayne Curry and Titenesha Russell beat, robbed and kidnapped Buford's ex-girlfriend L.R. who was seven months pregnant with Buford's child. They were charged with six felonies: count one—attempted premeditated murder of "Baby Doe," a seven-month-old fetus (Pen. Code, §§ 664 & 187)¹ with the special allegation that Boone, Curry and Russell personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)); count two—assault with a deadly weapon by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) with the special allegation that Boone, Curry and Russell inflicted the injuries when they knew or should have known that the victim was pregnant and that the injuries terminated the pregnancy (§ 12022.9, subd. (a)); count three—second degree robbery (§ 211); count four—kidnapping to commit robbery or "aggravated kidnapping" (§ 209, subd. (b)(1)); count five—attempted robbery (§§ 664 & 211); and count six—conspiracy to murder a human fetus (§§ 182, subd. (a)(1) & 187, subd. (a)). Boone pled guilty to counts one, two and three in exchange for a prison term of 14 years. The remaining defendants went to trial.

The jury convicted the three defendants on all counts, except it found Russell not guilty of robbery and Curry not guilty of conspiracy. It found true all the special allegations except the allegation that Curry acted with premeditation in attempting to murder the fetus.

The court sentenced defendants as follows: Buford, to life in prison for aggravated kidnapping, a consecutive term of 25 years to life for conspiracy to commit murder, and a consecutive upper term of five years for robbery. The court stayed sentences on the remaining counts pursuant to section 654; Curry, to life in prison for aggravated kidnapping plus a determinate term of 11 years and eights months: the upper term of nine years for attempted murder, one year for the weapon use enhancement, one year for robbery and eight months for attempted robbery. The court stayed sentences on the remaining counts pursuant to section 654; Russell, to life in prison for aggravated kidnapping and a consecutive term of 25 years to life for conspiracy to commit murder. It stayed sentence on the remaining counts pursuant to section 654.

The three defendants appeal, challenging the sufficiency of the evidence, jury instructions and the upper term sentences. We shall affirm the judgment.

FACTUAL BACKGROUND

A. The Prosecution's Case:

L.R. dated Buford before she became pregnant with his child in February 2004. As the pregnancy progressed, Buford told L.R. she should have an abortion. L.R. wanted to have the baby and told Buford that he could "just pay child support" if he "didn't want to be there." Buford acted indifferently and began to deny that the child was his. When L.R. was about five months pregnant, L.R. and Buford broke off their relationship.

At some time in the weeks leading up to the assault, L.R. called Buford's cell phone. A woman answered and identified herself as Buford's sister. The same woman, whose voice L.R. identified as Russell's, called L.R. to ask about the baby and the identity of the father. She continued to make harassing phone calls to L.R., calling her a "bitch" and threatening to kill L.R. and her baby.

Before the assault, L.R. told Buford that she had $700 and was willing to lend him money to repair his car. She lived with her grandmother and kept the money there.

Boone testified pursuant to her agreement to cooperate with the district attorney's office. She and Buford were "best friends." On September 20, 2004, five days before the assault and kidnapping, Buford asked Boone to "beat somebody up." She agreed to help him. In subsequent conversations, Boone learned that Buford and L.R. had argued over whether he was the baby's father.

Between September 20 and September 25, Buford and Boone devised a plan. Buford would invite L.R. to the movies but take her to a park where Boone would beat her up. The goal was to force L.R. to have a miscarriage. Boone asked Russell to help beat up L.R. and she agreed.

At about 8:00 p.m. on September 25, 2004, Buford picked up L.R. at her home for the ostensible purpose of taking her to the movies. He was driving a white Chevrolet Malibu. Curry, whom L.R. knew through Buford as "Pacman," was sitting in the back seat. Buford picked up Russell, who joined Curry in the back seat, then drove to a liquor store. After Buford, Curry and Russell bought liquor, everyone changed seats. Russell drove with Curry beside her. Buford and L.R. were in the back seat. Instead of going to the movies, defendants drove L.R. to a park in Elk Grove.

Buford and Russell informed Boone of their whereabouts by cell phone, while she waited for their arrival at the park. Buford, Curry and Russell drank behind some bushes and L.R. sat by herself. Eventually, L.R. told Buford she wanted to go home and he agreed to drive her back. Buford had his arm around L.R.'s waist, but turned sideways as they walked.

When Buford gave the signal, Boone and Russell ran in front of him and L.R., turned, and Boone sprayed L.R. in the face with mace. Boone also hit L.R. in the face. L.R. tried to fight back but was blinded by the mace. Russell joined the fray and punched L.R. in the face. L.R. fell to the ground. L.R. told her attackers that she was pregnant. When L.R. asked Buford for help, he responded, "[J]ust fight back."

The attack continued while L.R. was on the ground. Curry kicked her in the side. He also threw a garbage can at L.R., hitting her in the head. Boone removed L.R.'s tennis shoes and someone took her cell phone. At that point, Boone and Russell left in the Malibu by themselves. They drove north on Interstate 5 toward Meadowview where Russell's grandmother lived.

Back at the park, L.R. asked Buford to call an ambulance and he said, "Okay." However, instead of calling the ambulance, Buford called Boone and told her to "come back and finish the job." Boone asked Buford if he was trying to kill L.R., and Buford said, "[N]o, just the baby." He wanted Boone to continue, "as long as that baby gets up out of her." While Russell and Boone were driving back to the park, Buford called again to tell them to bring a baseball bat and flashlight from the car.

Boone and Russell approached L.R. at the park carrying a flashlight and baseball bat. Boone struck L.R.'s leg with the bat and Russell hit her in the head with the flashlight. The women told L.R. that Buford was not the father of her baby and he was not going to pay child support. L.R. named someone else as the baby's father because she wanted the beating to stop.

Boone testified that while Russell and L.R. continued to fight, Curry hit L.R. in the head, knocking her to the ground. Boone also stated that Curry kicked L.R. with both feet as she lay on the ground saying, "Help me, my baby." L.R. lost consciousness while she was on the ground.

Boone and Curry began searching L.R.'s clothing for money. Boone took $20 that they found inside L.R.'s bra. Changing her earlier testimony that she first learned of L.R.'s $700 in the car after they all left the park, Boone stated on redirect examination that Buford and Curry were looking for the $700 when Curry pulled L.R.'s clothes off. Curry removed L.R.'s pants and someone removed her socks. The defendants carried L.R. to the Malibu.

Once inside the car, Buford showed Boone and Russell a picture of the $700 on his cell phone, an image he had received from L.R. Although L.R. was not fully conscious, Buford suggested that they get the money from L.R.'s house by having her call her brother and asking him to bring it to the car.

Curry drove to Russell's apartment to get clean pants and underwear for L.R. Russell's roommate brought the clothes to the car and Boone and Russell put them on L.R. in the back seat of the car. Russell put a BB gun on her lap to scare L.R.

Curry continued to drive. Russell, Boone and Curry bought and smoked marijuana with the $20 they had taken from L.R. When someone looked in the car, Russell stated, "See what we do? See how we beat up bitches?" They let L.R. out of the car to urinate near a tree, but Boone and Russell stood next to her.

Once L.R. was awake, the defendants turned their attention to the money. Boone and Russell told L.R. that she "better find some way" to retrieve the $700. Someone handed L.R. a cell phone and ordered her to call home. L.R. telephoned her grandmother and told her to send L.R.'s brother outside with her purse.

L.R.'s grandmother stepped outside of the house at 1:00 a.m. and saw the Malibu approaching. Curry sped away and L.R. called her grandmother again, telling her to send L.R.'s brother to the car with the money. Sensing trouble, L.R.'s grand-mother asked if she was being held against her will. L.R. said that she was.

Curry pulled up again and L.R.'s brother approached the car. When he saw that L.R.'s face was bruised and bleeding, he told the occupants of the car to let her out. Instead, Curry drove off with L.R.'s brother holding onto the car door. L.R.'s grandmother called 911 when L.R.'s brot...