People v. Cleveland CA2/8 ( 2021 )

Filed 2/24/21 P. v. Cleveland CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301468
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA094785-04)
v.
LYNETTE CLEVELAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Edmund Wilcox Clarke, Jr., Judge. Affirmed in
part and remanded with directions.
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Charles C. Ragland and Stephanie H. Chow,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Lynette Cleveland appeals from a judgment which
sentences her to state prison for her participation in the torture,
kidnapping, false imprisonment, and assault of Ashleigh Wells
over five days in August 2016. At trial, Cleveland asserted she
participated in the crimes because she feared reprisal from her
codefendants and others if she did not. On appeal, she contends
the trial court prejudicially erred when it refused to instruct the
jury on duress, to sever her trial from that of her codefendants,
and to stay the sentences for three counts under Penal Code
section 654.1 She also contends there was insufficient evidence to
show she committed the crime of torture. Her arguments lack
merit. However, we find the trial court imposed an unauthorized
sentence and remand for the limited purpose of correcting that
error. We otherwise affirm the judgment.
FACTS
Cleveland met Wells and Shanavian “Shay” Liddell in
March 2016 at Timothy Thomas’s apartment. Liddell and Wells
both knew Thomas, a drug dealer with gang ties. At the time,
Cleveland was 19 years old and Wells was 30. Thomas and
Liddell were also much older than Cleveland. Cleveland, Wells,
and Liddell quickly became close friends and saw one another
almost every day. Cleveland confided to Wells that she was
living with her aunt, who “pimped” her out in exchange for drugs
or money. Wells attempted to help Cleveland, allowing her to
move in with her in June or July of 2016.
On August 20, 2016, Liddell and Cleveland returned from a
barbecue to Thomas’s apartment on West Boulevard. They were
robbed at gunpoint by three young black men. Each robber held
1 All undesignated section references are to the Penal Code
unless otherwise specified.
2
a handgun and demanded drugs and money. They took Liddell’s
and Cleveland’s identification cards and wallets. Liddell believed
they were Crip gang members because they wore blue rags over
their faces and used gang slang. As they left, Liddell heard them
say, “This is bullshit. She lied . . . There’s not shit in here.”
Liddell immediately drove with Cleveland to speak with
Thomas. Before she had time to tell him about the robbery, a car
pulled up behind her. The same three men jumped out and
began to shoot at them. Thomas fled with two of the men in
pursuit. Liddell, whose car was boxed in by the robbers’ car,
rammed their car and the car in front to get away. The robbers
followed.
The robbers stopped their pursuit when the police arrived.
Liddell did not tell the officers about the earlier robbery because
she was afraid they would discover that drugs were used and sold
at the West Boulevard apartment. After speaking with the
police, Liddell drove Cleveland and Thomas to Thomas’s home in
Hemet, where they stayed until August 24, 2016. While in
Hemet, Liddell called Wells, suggesting they meet soon at a motel
room to hang out. Wells agreed.
Day 1: August 24
Liddell arranged for her cousin, Steve Arnold, to drive
Wells to Gardena, where Arnold had rented a motel room.
Cleveland and Liddell met Wells and Arnold at a CVS drugstore
near the motel.
The women walked to the motel room and began to
socialize and smoke marijuana. They returned to CVS for
snacks. Later that night, they decided to go back to CVS a third
time before it closed. As they were preparing to leave the room,
Wells was unable to locate her phone, though she knew it was in
3
the motel room because it was wirelessly streaming music to a
speaker in the room. Cleveland and Liddell convinced her to
leave without it.
On the way to CVS, Arnold called, and they instead drove
to a liquor store for cigarettes and tequila. Arnold joined them in
the motel room, where they drank, used cocaine, and smoked
marijuana together.
Suddenly, Liddell’s demeanor changed. She locked the door
and began to pull the curtains, declaring “I’m only going to ask
you this one time about what happened on West.” She accused
Wells of setting up the robbery, explaining that a mutual friend
named Dominique Davis had implicated Wells. Davis and Wells
had only recently reconciled after a longstanding feud. When
Wells expressed confusion, Liddell told Wells what happened.
Wells denied any involvement in the robbery. She stated
she had just dropped Davis off at the bus station that morning
and Davis had given her no indication anything was wrong.
Liddell ordered Arnold, who was approximately six feet tall and
200 pounds, to block the door. She threatened that her “cousins”
wanted to hurt Wells in retaliation for the robbery. Liddell also
pulled a handgun out of the nightstand by the bed, held it for a
few seconds while looking at Wells, and then replaced it in the
nightstand.
Liddell brought out duct tape, latex gloves, and a hammer.
She taped Wells’s hands and legs together. She did the same to
Cleveland, explaining she suspected Cleveland because she lived
with Wells. Cleveland denied any knowledge of the robbery.
During her interrogation, Liddell struck Wells’s knees
three times and Cleveland’s knees twice. Both continued to deny
any knowledge about the robbery. Liddell also used Wells’s
4
phone, which she apparently had hidden earlier, to call Davis,
who did not answer. Liddell freed Cleveland sometime after the
initial questioning, stating she believed Cleveland had nothing to
do with the robbery. Liddell, Cleveland, and Arnold slept in the
bed while Wells slept on a chair, still bound with duct tape.
Day 2: August 25
Cleveland was left to watch Wells while Liddell and Arnold
paid for another night at the motel and further investigated the
robbery. Cleveland did not untie Wells, leave the room, or call for
help while they were gone. Wells remained bound most of the
day, though she was untied to use the restroom and eat a meal.
Wells slept on the floor that night.
Day 3: August 26
The following morning, the group left the motel. Wells’s
restraints were cut, she changed her clothes, and Arnold drove
them to Liddell’s brother’s house to retrieve Liddell’s car keys.
Wells sat in the back seat of the car with Cleveland. As they
approached her brother’s house, Liddell ordered Wells to duck
down in the seat so he would not see her. They stopped at the
liquor store for cigarettes and the grocery store for food. At no
time was Wells left alone.
Arnold also drove them to the Los Angeles Police
Department Southwest Station because Liddell needed to speak
with the detectives investigating the shooting incident. Arnold
parked at a restaurant across the street from the police station.
He gave Wells permission to use the restroom and Cleveland
accompanied her. Wells passed a bystander walking to the
restroom, but she did not ask for help.
5
Wells did not try to escape or otherwise seek help because
she hoped to defuse the situation with her friends and did not
want to make a scene or involve the police. Wells also hoped to
speak to Thomas and straighten out what she considered a
misunderstanding with him. Although Wells feared for her
safety, she did not, at that time, “know that there was a real
reason to run away.”
They all returned to Thomas’s apartment on West
Boulevard. Liddell and Cleveland bound Wells’s wrists and
ankles. She was told to remain in the second floor bedroom when
Thomas arrived. After he left, Liddell removed Wells’s restraints
and allowed her to take a shower and eat.
After dinner, Liddell began to ask Wells about the robbery.
She was suspicious that no one had answered the calls she made
from Wells’s phone or appeared to be looking for Wells. She said,
“They must know,” accusing Wells of lying. She and Cleveland
bound Wells with extension cords, attaching the cords to a pole in
the center of the living room. Wells overheard Liddell tell
Arnold, “I still got that,” which Wells understood to be the gun
she had seen in the motel room.
Liddell continued to question Wells about the robbery.
She used an electric cattle prod on Wells several times, causing
her “excruciating” pain. Wells urinated on herself and screamed
for Liddell to stop. Eventually, Arnold yelled from another room,
“That’s enough.” Liddell stopped, but told Wells that she “better
hope” Liddell fell asleep before she decided to interrogate Wells
further. Liddell appeared angrier than when she hit Wells with
the hammer at the motel. Wells remained tied to the pole the
entire night.
6
Day 4: August 27
The next morning, Davis called Wells’s phone. Liddell
became even more suspicious when she heard Davis ask Wells
unusual questions about Cleveland over the speakerphone.
After the call ended, Liddell put on a pair of thick black gloves
and punched Wells twice in the left eye. Wells, still tied to the
pole, began to bleed profusely.
Shortly afterwards, Wells was unbound, cleaned up, and
taken to the dining area because Lewis had arrived with her
children. Liddell spoke with Lewis in the bedroom and she left
soon after. Liddell then told Wells to call her mother and son to
say goodbye. Crying, Wells told her mother and son that she
loved them. Her mother asked what was wrong, but Wells said
she was just tired. Liddell and Cleveland tied Wells up again and
led her to the bedroom. Wells heard voices in the other room,
including new voices she did not recognize.
After approximately two hours, Liddell and Arnold moved
Wells to Arnold’s car, tying her bound legs and hands to the
headrests. As she was escorted out of the apartment, she saw
Thomas in the living room. Wells attempted to escape while she
was in the car. She managed to free a hand, but set off the car
alarm, which someone remotely deactivated. Arnold and Liddell
untied Wells from the headrests, but left her arms and legs
bound. They drove to a drive-through smoke shop. When they
returned to the apartment, Cleveland, Lewis, and Thomas’s son,
Marquis, were there.
Wells was again tied to the pole. Marquis and Liddell
questioned why Wells set up the robbery and attempted murder.
Wells continued to proclaim her innocence. After Liddell
punched Wells, she looked at Cleveland and asked, “Who wants
7
to go?” and “Do you want to go? Do you want some of this?”
Cleveland put on her tennis shoes and began to punch and kick
Wells.
After a few minutes, Liddell asked Lewis if she thought she
could “bust” Wells’s other eye. Lewis said yes, and punched
Wells’s right eye twice. Liddell goaded Lewis, “You can do better
than that,” causing Lewis to hit Wells with more force. Liddell
also hit Wells in the right eye. Wells felt her right eye begin to
bleed.
Liddell then told Wells she would allow her the chance to
defend herself. She instructed Wells to pick someone from the
group to fight. Wells named Liddell, despite believing it would
not be a fair fight regardless of whom she chose. Wells was
untied. She swung at Liddell but missed. She was immediately
hit in the back of the head. After she fell to the ground, the
entire group began to hit and kick her. She felt something cold
and hard hit her, like a hammer. She also felt something hot cut
across her back and legs. She believed she was “tased” on her
back and her feet.
Wells tried to cover her head and block the blows but began
to lose consciousness. She lost consciousness after she was hit in
the jaw several times. When Wells woke, it was dark. She was
lying on her stomach with her feet tied to the pole and a towel
nearby. Her hands were free. She used the towel to wipe her
face because she was spitting up blood. A female voice told Wells
to stop getting blood everywhere. Wells covered her head with
the towel and went back to sleep.
Day 5: August 28
Wells woke the next morning in tremendous pain; she was
unable to talk or see very well due to her injuries. Liddell gave
8
her permission to use the restroom. Wells crawled most of the
way to the restroom but when she attempted to use the wall to
stand, Liddell told her not to get blood on the wall. Wells saw
herself in the bathroom mirror and began to cry. Her eyes were
“pretty much swollen shut” and her lips were “busted.” There
was blood everywhere. She attempted to wash the blood from her
face, but Liddell ordered her out of the bathroom. Cleveland and
Liddell bound Wells to a chair in the bedroom.
Liddell told Wells she and Cleveland were leaving for a
couple of hours, but warned, “Don’t try no stupid shit.” She said
her cousin was outside and Arnold would be back to check on
Wells.
The Escape
Wells, fearing for her life, freed herself and crept down the
stairs after they left. When she saw no one in the apartment or
outside, she ran for help. Wells asked several people if she could
use their phone, but was rebuffed because they did not want to be
involved. She ultimately ran into a television repair shop on
West Boulevard where two men were inside.
To the men, Wells looked like “she was beat up something
terrible.” She told the men someone was trying to kill her and
asked to use the phone to call her mother. The men refused, and
said they were going to call 911 instead. Wells said she did not
want to get the police involved because she was afraid Liddell
and the others would be able to track her down and hurt her
further. She “just wanted to get away.” The men called 911
when Wells collapsed and lost consciousness.
Paramedics observed that Wells’s face was completely
swollen and her eyes shut. Wells told them she had been held
captive for five days and kicked and hit repeatedly. She asked
9
the paramedics to park the ambulance in the back of the store so
Liddell and the others would not see it. Wells was transported to
UCLA Medical Center, where medical staff treated her for
multiple broken bones in her face, including her eye sockets and
sinus area. She also suffered cuts to her face and legs, and had a
first-degree burn on her shoulder. Wells reported she had been
tased and tied up with extension cords and phone cords.
The Criminal Proceedings
Liddell, Cleveland, and Lewis were charged with torture
(count 1; § 206); kidnapping (count 2 against Liddell and
Cleveland only; § 207, subd. (a)); false imprisonment by violence
(count 3; § 236); and assault with means likely to produce great
bodily injury (count 4; § 245, subd. (a)(4)). As to all counts, the
information further alleged that each defendant personally
inflicted great bodily injury. (§ 12022.7, subd. (a).)
At trial, Wells testified to the events as described above.
Wells also testified to the lasting effects of her ordeal, including
numerous scars on her body, post-traumatic stress syndrome,
impaired vision, migraines, and a cracked tooth. The People
presented evidence corroborating Wells’s account, including
surveillance video from CVS, testimony from one of the men at
the repair shop, and testimony about her injuries from staff at
UCLA Medical Center.
The People also presented evidence from the police
investigation. One of the detectives assigned to the matter
testified that the West Boulevard apartment was completely
empty when officers executed a search warrant there; it smelled
of bleach and cleaning supplies. The pole in the living room had
been removed, but there were corresponding plates still attached
to the floor and the ceiling that indicated where the pole had
10
been. The officers recovered a bundle of extension cords near the
front door, one of which had blood splattered on it. A BB gun
made to look like a semi-automatic pistol was recovered from
Arnold’s apartment.
Liddell testified on her own behalf. She admitted she was
with Wells all five days, but claimed she only used force against
her on August 27, 2016, after Thomas ordered her to do so.
Liddell testified she complied because she was afraid of Thomas
and his friends. She admitted to beating Wells and using the
electric cattle prod on her feet. She confirmed she, Cleveland,
Arnold, and Marquis, Thomas’s son, each punched, kicked, or cut
Wells throughout the day. She further testified she never
threatened Cleveland and was “shocked” when Cleveland cut
Wells with a knife. She took the knife from Cleveland.
Liddell denied Wells was harmed or bound at the motel, or
that anyone prevented her from leaving during that time. She
testified Wells used methamphetamine at the motel, causing her
to become jittery. She believed Wells accompanied them willingly
to the motel and to the apartment on West Boulevard.
Liddell explained that during the time she and Cleveland
stayed with Thomas at his home in Hemet, they discussed who
could be behind the robbery and shooting. Thomas’s friend, who
she believed had just been released from jail, accused Liddell of
orchestrating the robbery. He also demanded, “Bitch, you need to
find out what happened . . . .” Because Thomas already
suspected her, Liddell was afraid she would end up like Wells if
she did not obey him.
Liddell testified Wells admitted that members of a Crip
gang named Schoolyard were involved in the robbery and
shooting. Liddell conveyed that information to Thomas’s friend,
11
who had been calling for daily updates and threatening Liddell.
Neither Cleveland nor Lewis testified at trial.
The jury found Cleveland guilty on all counts2 and found
true the great bodily injury allegations as to counts 2 through 4.3
As to count 1 for torture, Cleveland was sentenced to a life term
with minimum parole eligibility of seven years. She was also
sentenced to a determinate term of five years for the kidnapping
charge in count 2, with counts 3 and 4 to run concurrently and
the sentencing enhancements stayed under section 654.4
Cleveland timely appealed.
2 Liddell and Lewis were also found guilty on all counts. We
affirmed the judgments against them in People v. Liddell et al.
(Oct. 23, 2019, No. B292304) [nonpub opn.].
3 The trial court struck the great bodily injury enhancement
allegation as to count 1.
4 The parties maintain, and we agree, the trial court
improperly imposed and stayed the great bodily injury
enhancements found true in counts 2 through 4. (§ 12022.7,
subd. (a).) Except in circumstances not applicable here, the trial
court had no discretion to impose and stay the enhancements.
(People v. Haykel (2002) 96 Cal.App.4th 146, 152.) Rather, the
court was required to either impose or strike the enhancements.
(People v. Bradley (1998) 64 Cal.App.4th 386, 391; § 1385.) The
sentences on the great bodily injury enhancements are
unauthorized. (People v. Vizcarra (2015) 236 Cal.App.4th 422,
432.) We decline to follow Cleveland’s suggestion to strike the
enhancements, however, as it is unclear from the record what the
trial court would have done had it known it had such discretion.
We thus remand the matter for the limited purpose of allowing
the trial court to exercise its discretion to impose the
enhancements under section 12022.7, subdivision (a), or to strike
them. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1041.)
12
DISCUSSION
I. The Trial Court Did Not Prejudicially Err When It
Denied Cleveland’s Duress Instruction
Cleveland contends the trial court prejudicially erred when
it refused to instruct the jury on duress. Cleveland’s defense at
trial rested on her assertion she acted under duress because she
feared she would be hurt by Liddell, Thomas, and the others if
she did not comply with their instructions. According to
Cleveland, she was just as much a victim as Wells, especially in
the beginning when she was restrained and hit in the knees
alongside Wells. Even after she was released, she witnessed the
torture suffered by Wells and believed she would receive the
same treatment if she did not do as she was told.
Contrary to Cleveland’s assertions, however, there was no
evidence of any direct or implied threat to her immediate safety.
Moreover, there was no evidence of her state of mind to show she
believed she was in imminent danger if she did not comply. As a
result, the trial court did not err by refusing to instruct the jury
on duress.
A. Applicable Law
“ ‘It is well settled that a defendant has a right to have the
trial court . . . give a jury instruction on any affirmative defense
for which the record contains substantial evidence [citation]—
evidence sufficient for a reasonable jury to find in favor of the
defendant [citation]—unless the defense is inconsistent with the
defendant's theory of the case [citation]. In determining whether
the evidence is sufficient to warrant a jury instruction, the trial
court does not determine the credibility of the defense evidence,
but only whether “there was evidence which, if believed by the
jury, was sufficient to raise a reasonable doubt . . . .” [Citations.]’
13
[Citations.] On appeal, we likewise ask only whether the
requested instruction was supported by substantial
evidence . . . .” (People v. Mentch (2008) 45 Cal.4th 274, 288.)
“Penal Code section 26 declares duress to be a perfect
defense against criminal charges when the person charged
‘committed the act or made the omission charged under threats
or menaces sufficient to show that they had reasonable cause to
and did believe their lives would be endangered if they refused.’ ”
(People v. Vieira (2005) 35 Cal.4th 264, 289–290.) “Duress is an
effective defense only when the actor responds to an immediate
and imminent danger. ‘[A] fear of future harm to one’s life does
not relieve one of responsibility for the crimes he commits.’
[Citations.] The person being threatened has no time to
formulate what is a reasonable and viable course of conduct nor
to formulate criminal intent. ‘The unlawful acts of the person
under duress are attributed to the coercing party who supplies
the requisite mens rea . . . .’ [Citation.] Thus, duress negates an
element of the crime charged—the intent or capacity to commit
the crime—and the defendant need raise only a reasonable doubt
that he acted in the exercise of his free will. [Citation.]” (People
v. Heath (1989) 207 Cal.App.3d 892, 900.)
B. Proceedings Below
At trial, Cleveland argued she had reasonable cause to
believe she was in danger from Liddell, Thomas, and others if she
did not comply with their instructions to restrain and harm
Wells. During opening statements, her counsel explained, “Ms.
Cleveland didn’t have the option to leave at any time. She stayed
there after she was beaten. She stayed there after it was clear
that someone was going to pay for what happened. . . . Many
things happened to Ms. Wells while she was there, but not at the
hands of Ms. Cleveland, so much so that the only involvement
14
Ms. Cleveland had is doing exactly what she was told to do, at
age 19, amongst some older people and some drug dealers.
So when she was [told], hey, take [Wells] from here to here, help
her from here to here, wash her up, she did what she was told.”
Shortly before closing arguments, Cleveland’s counsel
requested the trial court instruct the jury with CALCRIM No.
3402,5 the standard instruction on duress. The trial court was
skeptical there was sufficient evidence to support an instruction
on duress, noting the two hurdles to that instruction were
immediacy and the seriousness of the threat. The trial court read
section 26 strictly to apply only to fear of immediate death and
found unpersuasive and nonbinding the cases that allowed a
duress instruction where the evidence supported a finding of fear
of great bodily injury. The court stated it saw no evidence anyone
threatened Cleveland with immediate death.
5 CALCRIM No. 3402 provides:
“The defendant is not guilty of if (he/she) acted
under duress. The defendant acted under duress if, because of
threat or menace, (he/she) believed that (his/her/ [or] someone
else’s) life would be in immediate danger if (he/she) refused a
demand or request to commit the crime[s]. The demand or
request may have been express or implied. The defendant's belief
that (his/her/ [or] someone else’s) life was in immediate danger
must have been reasonable. When deciding whether the
defendant’s belief was reasonable, consider all the circumstances
as they were known to and appeared to the defendant and
consider what a reasonable person in the same position as the
defendant would have believed. A threat of future harm is not
sufficient; the danger to life must have been immediate. [The
People must prove beyond a reasonable doubt that the defendant
did not act under duress. If the People have not met this burden,
you must find the defendant not guilty of .]”
15
Cleveland’s trial counsel argued the totality of the evidence
supported a duress instruction, including the initial hammer
blows to her knees on the first night and the involvement of
dangerous drug dealers and gang members who were out for
revenge.6 As a result, Cleveland could not leave and simply
followed Liddell’s instructions. He further explained, “in the
midst of that my client . . . is broached with the question, ‘Do you
want some of this?’ ”
The trial court was unpersuaded. It indicated Wells herself
did not believe she was at risk of immediate death in the days
before she was beaten to unconsciousness, including when she
was hit by a hammer, when she was tied up in Arnold’s car, or
when Liddell used a taser on her. According to the court, Wells
“went through many, many times over what Ms. Cleveland went
through, many, many times over, and she didn’t say until very
late in the game and on the phone with her mother and message
to her son that death had even occurred to her.” The court
concluded, “So why would someone assume being hit with a
hammer days before caused a lasting belief and fear that
immediate death was about to occur if you didn’t [get] cut with
the knife, tase[d] with the taser, tie[d] [ ] up? So to me it is
speculative to say that Ms. Cleveland at any point in time, let
alone a time when she did the acts which would constitute these
crimes personally, that she was in fear of immediate death.”
6 Cleveland also asserts she was raped by Arnold on the first
night, lending further credence to her fear of Liddell, Arnold, and
the others. Although there was testimony that Cleveland and
Arnold had sex at the motel, there is no evidence that it was not
consensual.
16
The trial court further found there was no evidence of
Cleveland’s state of mind and indicated she would likely have to
testify about it if she wanted a duress instruction. After
consulting with Cleveland, her counsel advised the trial court she
was unwilling to testify because she feared Thomas and her
codefendants. As an alternative, counsel requested an
instruction that evidence of duress may negate the specific intent
required for torture, even if the evidence failed to support a
complete duress defense. This request, too, was denied.
After the verdicts, counsel filed a motion for new trial,
asserting among other things, that denial of the duress
instruction violated Cleveland’s right to due process, a fair trial,
and competent counsel. The motion for new trial was denied.
C. There Was No Evidence of a Threat of Imminent
Harm
We agree with the trial court’s finding there was
insufficient evidence of duress to support a jury instruction on
the defense. There was no evidence of a direct or implied threat
to Cleveland, much less that the threat was of imminent great
bodily injury or death. 7
We are guided by the Supreme Court’s analysis of similar
facts in People v. Powell (2018) 6 Cal.5th 136, 164–165 (Powell).
In Powell, the defendant claimed he acted under duress when he
shot the victim during a robbery. The Supreme Court found the
evidence did not support an inference of duress because there was
no evidence the codefendants were armed at the crime scene, and
7 For purposes of this opinion, we need not determine
whether section 26 limits the defense of duress only to fear of
immediate death and not to situations involving fear of great
bodily injury. As discussed below, there was no evidence anyone
threatened Cleveland with immediate death or great bodily
injury.
17
the evidence showed the defendant did not claim in his police
statement the codefendants threatened him in any way, only that
he felt “pressured.” Though the evidence showed the
codefendants “coached” him to shoot the victim, the high court
found “coaching is far from duress.” (Id. at p. 165.) The court
noted the version of events in the defendant’s anticipated
testimony included elements of duress. However, he elected not
to testify and thus that testimony was not in the record.
Accordingly, the court concluded the trial court did not err to
refuse to instruct the jury on duress. (Ibid.)
In People v. Otis (1959) 174 Cal.App.2d 119 (Otis), Justice
Tobriner, writing for the First District, also found an instruction
on duress was not required. There, the defendant prison inmate
was convicted of possession of three knives and a file. He
testified another inmate stuck the point of a knife in him and told
him that it was only a sample of what he would get if he did not
hide the knives. (Id. at pp. 121–122.) The court found the threat
of harm was not immediate. At the time of the threat, the inmate
was in a different cell and the knife only pricked the defendant.
The inmate was then moved to an entirely different part of the
prison where he was murdered. The court found any threat of
harm ended with the inmate’s death. Moreover, “the threats
themselves had stretched over a period from May to September,
so that to some extent they became stale and partially remote”
even before the inmate was killed. In any event, the defendant
could have sought the protection of prison officials at any time
but did not. (Id. at p. 126.)
The evidence here was likewise insufficient to require an
instruction on duress. No one directly threatened Cleveland after
the initial interrogation at the Moonlight Motel. Indeed, there
was no evidence she was a suspect after the first day. To the
contrary, Wells was asked whether Davis’s phone call on the
18
fourth day increased Liddell’s suspicions about Cleveland’s
involvement in the robbery. Wells responded, “No. She didn’t do
anything to Netta, didn’t say anything to Netta. Still focused her
attention on me. And that’s when she put on the gloves and
began to hit me, but she didn’t threaten Netta or do anything
towards her.” Indeed, Cleveland was trusted to watch over Wells
unsupervised.
Further, Powell informs us that Liddell’s instructions to
Cleveland to restrain and harm Wells were “far from duress.”
Although Cleveland claims she believed she was under threat of
imminent harm, there was no evidence of her state of mind
because she did not testify to it nor did anyone else testify she
told them she feared for her life or safety.
Even if an implied threat could be inferred from the totality
of the circumstances, Otis informs us that the threat of harm was
not sufficiently imminent. Instead, any threat to Cleveland
during the first night had become “stale and partially remote” in
the intervening days. We agree with the trial court that the
evidence did not support an inference that Cleveland faced an
imminent threat of harm when Wells, who arguably was under
far greater threat, did not feel harm to her was imminent until
Day 4. When asked why she did not run to the police station on
Day 3 after she had been restrained and hit in the knees by
Liddell, Wells testified she did not “know that there was a real
reason to run away.” Additionally, as in Otis, Cleveland could
have sought the protection of authorities but did not. We
conclude the evidence failed to demonstrate an imminent threat
of harm to Cleveland that necessitated an instruction on duress.
We likewise reject Cleveland’s argument that the trial
court erred when it refused to instruct the jury that evidence of
duress may negate the specific intent required for torture, even if
the evidence failed to support a complete duress defense. Under
19
appropriate circumstances, “a trial court may be required to give
a requested jury instruction that pinpoints a defense theory of
the case by, among other things, relating the reasonable doubt
standard of proof to particular elements of the crime charged.
[Citations.] But a trial court need not give a pinpoint instruction
if it is argumentative [citation], merely duplicates other
instructions [citation], or is not supported by substantial evidence
[citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558.) For the
same reasons set forth above, the trial court was not required to
give the pinpoint instruction requested by trial counsel because
there was insufficient evidence to support it.
II. Joinder Was Proper
Cleveland next argues the trial court violated her
constitutional rights when it declined to sever her trial from that
of her codefendants’. Cleveland argues severance was required
because Liddell’s defense was antagonistic to hers. At trial,
Liddell testified Cleveland attacked Wells with a knife on her
own. As a result, she claims, the prosecution’s burden of proof to
show Cleveland committed torture and assault was lightened
while Cleveland’s defense that she only acted upon Liddell’s
orders was weakened. Cleveland also argues she feared Liddell
to such an extent it prevented her from testifying during the joint
trial, resulting in a violation of her due process rights. We are
not persuaded.
A. Governing Law
“ ‘Our Legislature has expressed a preference for joint
trials. [Citation.] Section 1098 provides in pertinent part:
“When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.” The court
may, in its discretion, order separate trials if, among other
reasons, there is an incriminating confession by one defendant
20
that implicates a codefendant, or if the defendants will present
conflicting defenses . . . . [¶] We review a trial court’s denial of a
severance motion for abuse of discretion based on the facts as
they appeared when the court ruled on the motion. [Citation.]
If we conclude the trial court abused its discretion, reversal is
required only if it is reasonably probable that the defendant
would have obtained a more favorable result at a separate trial.
[Citations.] If the court’s joinder ruling was proper when it was
made, however, we may reverse a judgment only on a showing
that joinder “ ‘resulted in “gross unfairness” amounting to a
denial of due process.’ ” [Citation.]’ [Citation.]” (People v.
Homick (2012) 55 Cal.4th 816, 848 (Homick); People v. Letner and
Tobin (2010) 50 Cal.4th 99, 150.)
“Severance is not required simply because one defendant in
a joint trial points the finger of blame at another. ‘ “ ‘Rather, to
obtain severance on the ground of conflicting defenses, it must be
demonstrated that the conflict is so prejudicial that [the] defenses
are irreconcilable, and the jury will unjustifiably infer that this
conflict alone demonstrates that both are guilty.’ ” [Citation.]
When, however, there exists sufficient independent evidence
against the moving defendant, it is not the conflict alone that
demonstrates his or her guilt, and antagonistic defenses do not
compel severance.’ [Citation.]” (Homick, supra, 55 Cal.4th at p.
850; see People v. Letner and Tobin, supra, 50 Cal.4th at p. 150.)
B. The Trial Court Did Not Abuse Its Discretion in
Denying the Motion to Sever
Because Cleveland and Liddell were charged with having
committed common crimes that involved the same victim and the
same series of events, the joinder of their cases was proper.
(Homick, supra, 55 Cal.4th at p. 850.) Indeed, this scenario
presents the “classic” case for joinder. (People v. Letner and
Tobin, supra, 50 Cal.4th at p. 150.) The trial court did not abuse
21
its discretion when it denied Cleveland’s severance motion before
trial. Neither did its decision result in “gross unfairness” during
the trial.
First, Cleveland’s guilt was not shown solely by Liddell’s
attempt to cast blame on her. Independent evidence showed
Cleveland was involved from the beginning and actively
participated in the crimes against Wells. She was with Liddell at
the time of the robbery and the subsequent attempt on Thomas’s
life. She accompanied Thomas and Liddell to Thomas’s home in
Hemet where Thomas and his friends demanded to know who
orchestrated the plot against him. Liddell also testified
Cleveland had an independent grievance against Wells because
her friend assaulted Cleveland and Cleveland believed Wells
could have stopped it.
Although Liddell suspected Cleveland was complicit with
Wells on that first night at the motel, Cleveland was quickly
cleared of suspicion and freed. For the next four days, Cleveland
was left alone with Wells but failed to attempt to help Wells
escape or leave the group herself. It is also undisputed she
participated in restraining and beating Wells.
Aside from the independent evidence against her,
Cleveland’s argument that Liddell’s antagonistic defense
warrants severance is unavailing. Although Liddell testified she
did not demand Cleveland attack Wells and was shocked when
Cleveland brought out a knife to cut her, that testimony did not
create an irreconcilable conflict such that the jury would
unjustifiably infer the conflict alone demonstrated both
defendants were guilty. (People v. Hardy (1992) 2 Cal.4th 86,
168.) “ ‘ “That different defendants alleged to have been involved
in the same transaction have conflicting versions of what took
place, or the extent to which they participated in it, vel non, is a
reason for rather than against a joint trial. If one is lying, it is
22
easier for the truth to be determined if all are required to be tried
together.” ’ [Citations.]” (People v. Morganti (1996) 43
Cal.App.4th 643, 674–675.) Here, Liddell’s primary defense at
trial centered on her fear that she would suffer the same fate as
Wells if she did not obey Thomas’s instructions. No irreconcilable
conflict was created because the jury could have accepted
Liddell’s defense without also convicting Cleveland.
Further, Cleveland was not deprived of her due process
rights because she chose not to testify in a joint trial with Liddell.
Cleveland presents no authority for the proposition that a
defendant’s own decision not to testify in a joint trial results in a
due process violation.
Instead, Cleveland highlights a comment by the trial court
when it denied the motion to sever prior to trial: “There is
circumstantial evidence that [Ms. Cleveland] was restrained and
under duress. You could make that argument without her even
testifying.” Cleveland argues the trial court’s subsequent refusal
to instruct the jury on duress compromised her entire defense,
resulting in “gross unfairness.” As we discussed above, the trial
court’s refusal to give a duress instruction was proper because
there was insufficient evidence of a threat of immediate harm to
Cleveland. Moreover, Cleveland could have presented evidence of
her state of mind through comments she made to other
individuals. She did not. As a result, there was no evidence of
her state of mind, whether by her own testimony or another
witness’s testimony.
III. Substantial Evidence Supports the Conviction for
Torture
Cleveland next challenges her conviction for torture,
arguing there was insufficient evidence of her specific intent to
cause cruel or extreme pain and suffering to Wells for the
purpose of revenge, extortion, persuasion, or for any sadistic
23
purpose as required by section 206. We find substantial evidence
supports the jury’s finding.
A. Applicable Law
“ ‘In reviewing the sufficiency of the evidence, we must
determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” ’ [Citation.] ‘Substantial evidence’ is evidence which is
‘ “reasonable in nature, credible, and of solid value.” ’ [Citation.]”
(People v. Morgan (2007) 42 Cal.4th 593, 613–614.)
Under section 206, “[e]very 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.”
“Torture does not require the defendant act with
premeditation and deliberation, and it does not require that he
intend to inflict prolonged pain. [Citation.]” (People v. Massie
(2006) 142 Cal.App.4th 365, 371.) “The intent with which a
person acts is rarely susceptible of direct proof and usually must
be inferred from facts and circumstances surrounding the offense.
[Citations.]” (Ibid.)
B. Substantial Evidence Supported the Jury’s
Finding Cleveland Harbored the Requisite Intent
Cleveland asserts the evidence shows she acted under
duress and lacked the specific intent necessary for the crime.
We find the record contains substantial evidence of the requisite
intent. The evidence shows Cleveland helped Liddell restrain
Wells and witnessed Liddell use a taser on and punch Wells over
24
four days. Cleveland also “admittedly” participated in harming
Wells.
Wells testified Liddell did not tell Cleveland what to do or
threaten Cleveland before she began to punch and kick her.
Wells recalled Cleveland put on her shoes before the beating,
indicating she gave thought to how she would harm Wells. For a
“few minutes,” Cleveland punched her head and kicked her in the
back and side. Cleveland also participated in the group beating
that occurred shortly after she and Lewis each took turns
striking Wells. Wells was again tased, kicked, and punched until
she lost consciousness.
“[T]he intent to cause severe pain need not be proven by
direct evidence, but can be inferred from the circumstances of the
offense, such as a focused attack on a particularly vulnerable
area.” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1429.) In
Hamlin, the court held substantial evidence supported a finding
of an intent to commit torture where the defendant targeted the
victim’s face and areas of her body that he knew were already
hurt. (Id. at p. 1428.) Likewise, Cleveland targeted Wells’s face
as well as the back of her head even after she witnessed Liddell
punch her in the eye only hours before.
Additionally, substantial evidence supports a finding
Cleveland harmed Wells for the purpose of revenge. Liddell
testified Cleveland blamed Wells for the robbery. Liddell also
testified Cleveland was angry at Wells because she was
previously assaulted by one of Wells’s friends and believed Wells
should have stopped it.
We are not persuaded to change our conclusion by
Cleveland’s assertion she participated in torturing Wells because
“she was afraid not to.” That there may have been evidence of an
25
alternate or additional intent does not negate our finding that
substantial evidence supports the jury’s conclusion that
Cleveland intended to inflict cruel or extreme pain and suffering.
Neither does People v. Pre (1994) 117 Cal.App.4th 413 (Pre), alter
our analysis. Cleveland cites Pre for the proposition that there
must be “no other apparent purpose” for the crime other than
“revenge or sadistic pleasure” for a torture conviction to stand.
Cleveland turns Pre on its head. Pre does not stand for the
proposition that the intent element of torture is not supported if
there is any other apparent purpose for a defendant’s actions.
Again, evidence that an alternate or additional intent may exist
does not negate our conclusion that substantial evidence supports
a finding that Cleveland held the requisite intent for torture.
IV. Section 654 Does Not Preclude Separate Sentences
on Counts 2 through 4
Cleveland contends her sentences on counts 2 through 4
should be stayed pursuant to section 654 because the offenses
constituted an indivisible course of conduct with count 1 for
torture and involved the same objective shared between her and
Liddell: to extract information from Wells regarding the robbery
and shooting. We disagree.
A trial court’s section 654 determination is upheld if
supported by substantial evidence. (People v. Brents (2012) 53
Cal.4th 599, 618; People v. Coleman (1989) 48 Cal.3d 112, 162.) If
the court makes no express section 654 finding, a finding that the
crimes were divisible and thus subject to multiple punishments is
implicit in the judgment and must be upheld if supported by
substantial evidence. (People v. Lopez (2011) 198 Cal.App.4th
698, 717.)
26
“Section 654 prohibits multiple punishment for a single
physical act that violates different provisions of law.” (People v.
Jones (2012) 54 Cal.4th 350, 358.) This prohibition extends to
separate punishment for multiple crimes “committed during ‘a
course of conduct deemed to be indivisible . . . .’ ” (People v.
Harrison (1989) 48 Cal.3d 321, 335); People v. Islas (2012) 210
Cal.App.4th 116, 129.) Where the defendant has only a single
intent and objective and all her offenses were incidental to that
single intent and objective, she may be punished only once.
(People v. Britt (2004) 32 Cal.4th 944, 951–952, disapproved on
another ground in People v. Correa (2012) 54 Cal.4th 331.)
Alternatively, “a course of conduct divisible in time,
although directed to one objective, may give rise to multiple
violations and punishment.” (People v. Beamon (1973) 8 Cal.3d
625, 639, fn. 11 (Beamon).) “This is particularly so where the
offenses are temporally separated in such a way as to afford the
defendant opportunity to reflect and to renew his or her intent
before committing the next one, thereby aggravating the violation
of public security or policy already undertaken.” (People v. Gaio
(2000) 81 Cal.App.4th 919, 935; People v. Kwok (1998) 63
Cal.App.4th 1236, 1255.)
In In re William S. (1989) 208 Cal.App.3d 313, 315-316
(William S.), the defendant entered a home, stole several items,
and left the front door unlocked when he departed. He returned
several hours later, entered through the unlocked door, took
several more items, and again departed. The defendant argued
he committed only one burglary, but that even if he had
committed two, he could be sentenced only once because leaving
the door unlocked during the first entry evinced a single criminal
27
intent because it was done to facilitate the second entry. (Id. at
pp. 318–319.)
The court rejected these arguments. It first distinguished
the multiple entries in the case before it from a hypothetical case
involving multiple entries within a short period of time in order
to load a getaway vehicle. (William S., supra, 208 Cal.App.3d at
p. 317.) The hypothetical scenario could be viewed as one
continuous course of conduct and one crime. (Ibid.) But the case
before it involved two entries made several hours apart, with
ample opportunity for the defendant to reflect after the first
entry, and therefore the two entries constituted two burglaries.
(Ibid.) Additionally section 654 did not apply because the crimes
were committed “by means of two distinct and different entries,
separated both in time and place, and with the intent to steal
entirely different property.” (Id. at p. 319.) The court further
noted “the grave risks of violent confrontation engendered in the
initial burglary were repeated in the second,” and that, “[t]he
second entry doubled the danger of violent confrontation.” (Id. at
pp. 318–319.)
The court in People v. Trotter (1992) 7 Cal.App.4th 363(Trotter) found section 654 did not apply even in a case where
mere moments separated the crimes. There, the defendant shot
three times in rapid succession at a pursuing officer as he led
police on a high-speed car chase. (Id. at pp. 366–367.) On
appeal, he argued he should not have been sentenced
consecutively in two of the three assaults, arguing they were part
of a single course of conduct and were incidental to one objective.
(Id. at p. 366.)
28
The Trotter court rejected this contention, reasoning:
“The purpose behind section 654 is ‘to insure that a
defendant’s punishment will be commensurate with his
culpability. [Citation.]’ [Citation.] Defendant’s conduct became
more egregious with each successive shot. Each shot posed a
separate and distinct risk to [the pursuing officer] and nearby
freeway drivers. To find section 654 applicable to these facts
would violate the very purpose for the statute’s existence. [¶]
Furthermore, this was not a case where only one volitional act
gave rise to multiple offenses. Each shot required a separate
trigger pull. All three assaults were volitional and calculated,
and were separated by periods of time during which reflection
was possible. None was spontaneous or uncontrollable.
‘[D]efendant should . . . not be rewarded where, instead of taking
advantage of an opportunity to walk away from the victim, he
voluntarily resumed his . . . assaultive behavior.’ ” (Trotter,
supra, 7 Cal.App.4th at pp. 367–368.)
As in William S. and Trotter, Cleveland’s conduct was
separated by periods of time during which Cleveland had the
opportunity to reflect and walk away. The events occurred over
five days. Aside from the first night, Cleveland was not
restrained and had ample opportunity to reflect on the events as
they occurred and leave. Indeed, she was left alone with Wells on
the second day while Arnold and Liddell investigated the
shooting. On the third day, she accompanied Wells to the
restroom in a restaurant located across the street from a police
station. Rather than take the opportunity to leave, she continued
to aid Liddell to restrain Wells and move her from place to place.
On the fourth day, Cleveland put on her shoes and began to
punch and kick Wells upon Liddell’s urging. She then watched
29
Lewis punch Wells to “bust the other eye” and still chose to
participate in the group beating that ensued. She then remained
at the West Boulevard apartment that night while Wells lay
unconscious on the floor and only left with Liddell the next day.
We agree with Trotter that Cleveland should not be
rewarded where, instead of taking advantage of multiple
opportunities to walk away from the situation, she voluntarily
participated in the offenses. (Trotter, supra, 7 Cal.App.4th at pp.
367–368.) We are not persuaded by People v. Mejia (2017) 9
Cal.App.5th 1036 (Mejia) to reach a different conclusion.
Cleveland cites Mejia to argue section 654 applies where the
underlying crimes were components of the course of conduct that
constituted torture. Mejia did not address the Supreme Court’s
holding that a course of conduct divisible in time, although
directed to one objective, may give rise to multiple violations and
punishment where the defendant is afforded the opportunity to
reflect and renew her intent. (Beamon, supra, 8 Cal.3d at p. 639,
fn. 11.) Mejia does not invalidate Beamon or our analysis.
DISPOSITION
The matter is remanded with directions to the trial court to
exercise its discretion to impose or strike the great bodily injury
enhancement under section 12022.7, subdivision (a), as to counts
2 through 4. The judgment is otherwise affirmed.
BIGELOW, P. J.
We concur:
GRIMES, J. WILEY, J.
30