People v. Masbruch

Decision Date26 August 1996
Docket NumberNo. S047206,S047206
CourtCalifornia Supreme Court
Parties, 920 P.2d 705, 96 Cal. Daily Op. Serv. 6380, 96 Daily Journal D.A.R. 10,419 The PEOPLE, Plaintiff and Respondent, v. Richard James MASBRUCH, Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, Justice.

We here determine the applicability of enhancements under Penal Code section 12022.3, subdivision (a) (§ 12022.3(a)), 1 for "use[ ]" of a firearm "in the commission of" a crime, to sex offenses that a defendant commits after initially displaying a firearm. This issue has divided the Courts of Appeal. We conclude that the Court of Appeal here properly found that defendant used a firearm in the commission of rape and sodomy. We therefore affirm the judgment of the Court of Appeal.

I. FACTS AND PROCEDURAL BACKGROUND

Mary K. and her mother, Marietta K., lived in an apartment complex in Fresno, California. Mary had managed the complex for over 10 years. At approximately 5 p.m. on April 2, 1991, defendant Richard James Masbruch came to the door to apply for an apartment. Mary gave defendant an application form to fill out and invited him into the apartment to get his name and phone number.

As defendant and Mary walked into the living room, defendant turned around and pointed a gun at her face. He told her to put her hands up and give him her purse. Mary explained she did not have a purse, and defendant asked to see her checkbook. Mary complied. Defendant set the checkbook down and told Mary to go into the kitchen. She assumed the gun was pointed at her head. He told her to lie facedown on the kitchen floor and tied her hands and feet with telephone cord. He then "hog-tied" her, tying her hands and feet together.

Marietta, Mary's mother, then came downstairs. Defendant "polite[ly]" told her, "Your daughter wants to see you in the kitchen." Marietta responded, "Oh, I wonder what she wants." As Marietta entered the kitchen, she saw Mary on the floor, and said, "Oh, my God." Mary told her, "Just do whatever he says to do, because he has a gun."

Defendant sat Marietta on a kitchen chair and tied her hands and feet with a cloth parrot cage cover. He then said he wanted jewelry and money. The two women directed defendant to various locations of the house. After exploring each proposed area, defendant returned to the kitchen, and the women suggested another location. They "figured if [they] cooperated that he wouldn't kill [them]. When he would go upstairs, [they] would talk and think of different places where money might be, so if he got enough that he would just leave [them] alone." Mary "could only really see [defendant's] feet" during most of this period.

Defendant then blindfolded the women. Mary noticed that "[i]t was quiet for awhile." Defendant then turned Mary on her side. "[I]t felt like he had taken a butcher knife and started at [her] knee and just ran it as slow as he could all the way down to [her] ankle. [She] was screaming, because it was ... the most excruciating pain you could think of. It was like to the bone. [She] kept waiting to feel the fluid of the blood coming out and [she] didn't feel it and [she] didn't know what he'd done." Defendant had apparently spliced several electrical cords together and shocked Mary with this makeshift Defendant "unhogtied" Mary and went through her pockets for money. He then unzipped her pants. Mary said, "You're not going to rape me?" Defendant said, "Shut up." He forced his penis into her vagina. He complained that Mary "wasn't cooperating," and used his hands to stretch her vaginal area apart. He then sodomized her.

[920 P.2d 708] instrument. Defendant also shocked Marietta's right arm. After he finished, defendant said, "That's a warning to show you what I can do to you."

After the assault, Mary's blindfold came off her left eye, enabling her to "see partially." Defendant began smoking, swearing, and throwing objects. Mary testified, "I thought he was going to kill us then." He "was in the butcher knife drawer." She "figured maybe his gun broke or something," and "was afraid ... he was going to slit [their] throats." Instead, defendant gagged Mary, threatened to kill the women if they ever called the police, and left. Mary did not see the gun again after defendant first pointed it at her. After discovering that she was bleeding profusely, Mary called the police.

The jury found defendant guilty of rape (§ 261, subd. (a)(2)), sodomy (§ 286, subd. (c)), first degree burglary (§§ 459, 460), two counts of residential robbery (§§ 211, 212.5, subd. (a)), two counts of false imprisonment (§ 236), and two counts of torture (§ 206). It further found that defendant used a firearm (§ 12022.3(a)) 2 and inflicted great bodily injury (§ 12022.8) in the commission of the rape and the sodomy, and that he personally used a firearm (§ 12022.5, subd. (a) (§ 12022.5(a))) in the commission of the burglary, robberies, and false imprisonment. The jury also found that defendant committed the burglary and one of the robberies against a person 60 years of age or older, and that he inflicted great bodily injury upon that person. (§ 1203.09.)

The court sentenced defendant to serve two consecutive life terms for the torture counts, to be served following a total determinate term of forty-five years and four months for the other offenses and enhancements. As relevant here, the sentence included two 4-year enhancements under section 12022.3(a) for use of a firearm in the commission of the rape and sodomy. The court also imposed a $10,000 restitution fine and an additional $100 fine under section 290.3.

The Court of Appeal reversed the great bodily injury enhancement as to the sodomy count and reduced the restitution fine to $200. In all other respects, it affirmed the judgment. We granted defendant's petition for review.

II. DISCUSSION

Defendant contends that there is insufficient evidence to support the enhancements under section 12022.3(a) for use of a firearm in the commission of the rape and sodomy. Specifically, he asserts that he did not "use" the gun "in the commission of" the sex offenses because he displayed it only at the outset of his criminal activity, approximately one hour before he committed the sex offenses, and he left Mary several times during the interim to commit crimes in other parts of the house. We disagree.

At the time of defendant's crimes, section 12022.3(a) provided in relevant part: "For each violation of Section 261 [rape], ... 286 [sodomy], ... and in addition to the sentence provided, any person shall receive an enhancement (a) of three, four, or five years if the person uses a firearm or any other deadly weapon in the commission of the violation...." 3 (Stats.1989, ch. 1167, § 3 Whether a defendant "used a firearm in the commission of" an enumerated sex offense is for the trier of fact to decide. (People v. Najera (1972) 8 Cal.3d 504, 510, 105 Cal.Rptr. 345, 503 P.2d 1353, fn. omitted, disapproved in part by People v. Wiley (1995) 9 Cal.4th 580, 587-588, 38 Cal.Rptr.2d 347, 889 P.2d 541 [Najera correctly construed statute, but not California Constitution, to require jury to decide weapon use allegation].) As we have explained: "By employing the term 'uses' [in section 12022.5] instead of 'while armed' the Legislature requires something more than merely being armed. [Citation.] ... Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. 'Use' means, among other things, 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses' be broadly construed." (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024, italics added.) We concluded in Chambers that the defendant, who had pointed a gun at the victim and demanded money, "utilized the gun at least as an aid in completing an essential element of the crime of robbery--the taking of personal property 'accomplished by means of force or fear.' (§ 211.) The facts [were] more than sufficient to support a finding that defendant used a firearm within the meaning of section 12022.5 in the commission of the offense." (People v. Chambers, supra, 7 Cal.3d at pp. 672-673, 102 Cal.Rptr. 776, 498 P.2d 1024, italics added.)

                [920 P.2d 709] p. 4529, italics added.)   The relevant language, i.e., "uses" and "in the commission of," also appears in two other weapon use enhancement statutes.  (See §§ 12022, subd.  (b) (12022(b)) 4 and § 12022.5(a). 5  )  These three provisions are part of "The Dangerous Weapons' Control Law."  (§ 12000 et seq.;   see People v. Bland (1995) 10 Cal.4th 991, 996, 43 Cal.Rptr.2d 77, 898 P.2d 391.)  "The intent of the Legislature in enacting the firearm use enhancement ... was 'to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use.'  [Citations.]"  (People v. Fierro (1991) 1 Cal.4th 173, 225-226, 3 Cal.Rptr.2d 426, 821 P.2d 1302;  see § 1170.1, subd.  (i).)  Section 12022.3(a) applies even though the firearm was unloaded or inoperable at the time of the crime.  (See People v. Bland, supra, 10 Cal.4th at pp. [13 Cal.4th 1007] 1004-1005, 43 Cal.Rptr.2d 77, 898 P.2d 391 [§ 12022, subd.  (a)(2), applicable although gun unloaded];  People v.
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