Filed 2/26/15 P. v. Gallion CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066361
Plaintiff and Respondent,
v. (Super. Ct. No. FSB1201452)
GARY MICHAEL GALLION et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of San Bernardino County,
Michael A. Smith, Judge. Judgment against Cone affirmed; judgment against Gallion
affirmed as modified.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and
Appellant Gary Michael Gallion.
David M. McKinney, under appointment by the Court of Appeal, for Defendant
and Appellant Laurie Jean Cone. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa A. Mandel and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Gary Michael Gallion and Laurie Jean Cone (together, Defendants) appeal from
judgments entered upon their convictions for residential robbery, first degree burglary,
and murdering Laurie's husband, John Joseph Cone. The jury found true two special
circumstances, namely that the murder was committed during the commission of a
robbery and a burglary. The jury also found Laurie guilty of two counts of solicitation to
commit murder. Defendants assert a number of issues on appeal. Laurie contends (1) the
special circumstance findings must be stricken because the verdict forms did not
specifically reference the special circumstances and the jury did not expressly find that
she, as an aider and abettor, either intended to kill or acted with reckless indifference to
human life, and (2) the trial court erred by failing to instruct the jury sua sponte that a
person cannot be guilty of burglarizing one's own residence and instead providing a
contrary instruction. Gallion argues (1) the felony murder special circumstance as
applied to him, the actual killer, is unconstitutionally vague, and (2) the trial court erred
in imposing a parole revocation restitution fine because his sentence does not include a
determinate term. The Attorney General concedes, and we agree, that the trial court erred
in imposing a parole revocation restitution fine on Gallion. Accordingly, we modify the
judgment against Gallion to strike the parole revocation restitution fine. In all other
respects, the judgments are affirmed.
2 FACTUAL AND PROCEDURAL BACKGROUND
Defendants do not challenge the sufficiency of the evidence to support their
convictions. Accordingly, we summarize the facts to provide background for their
contentions on appeal.
Laurie and John lived together since 1985 and were married in 2001. They had a
daughter together, Jacklyn Cone. Laurie had a gambling problem, which caused tension
in her marriage.
In 2007 and 2012, Laurie solicited Jacklyn's boyfriend and an acquaintance to kill
John. Neither individual acted on the requests. By mid-March 2012, Laurie had moved
out of the residence she shared with John. John changed the locks to keep her out.
In April 2012, Laurie went to Shawna Bayless's home to have Bayless create a
fake check for her. Gallion was at Bayless's home during that time. Laurie complained
to Bayless that John would not give her any clothes or money. At that point, Gallion
asked Laurie if she wanted John robbed and the two began discussing details of the
robbery. Laurie drew Gallion a diagram of how to get into the house, told him about
valuable items in the house, and detailed the home's video surveillance. Laurie told
Gallion not to kill John.
Later that evening, Laurie picked Jacklyn up from John's house to get Jacklyn "out
of there so [Gallion] could do what he had to do." When they returned to John's house,
Laurie and Jacklyn found the outside gate and back door open. They proceeded inside
the house and found it was ransacked with items thrown around and guns were missing.
3 Jacklyn called the police. When the police arrived, they found John's body in the
bedroom. John was dead and had been badly beaten.
Police recovered several items from John's home in a dumpster, including his
DVR. Surveillance video from the DVR captured much of what took place on the night
of the murder. The perpetrator on the video had a tattoo similar in appearance and
location to a tattoo which Gallion had on the back of his neck. Gallion and the
perpetrator on the video also both had tattoos on their legs.
DISCUSSION
I. Special Circumstance Findings
A. Additional Background
The trial court instructed the jury with CALCRIM No. 703, regarding the intent
required for an accomplice when the felony murder special circumstance is charged.
That instruction provided the following:
"If you decide that a defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance of murder during the commission of a robbery or a burglary, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.
"In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following:
"1. The defendant's participation in the crime began before or during the killing;
"2. The defendant was a major participant in the crime;
"AND
4 "3. When the defendant participated in the crime, she acted with reckless indifference to human life.
"A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.
"[¶ . . . ¶]
"If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that she acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstances of murder during the commission of a burglary or robbery to be true. If the People have not met this burden, you must find these special circumstances have not been proved true for that defendant."
The trial court provided the jury with verdict forms, which stated, "We, the jury
. . . , find the allegation in Count 1 that in the commission of the above offense that the
murder of John Joseph Cone was aided and abetted by defendant LAURIE JEAN CONE,
while the said defendant was an accomplice in the commission of the crime of burglary in
the first and second degree to be: [true or not true]." The verdict form for the special
circumstance related to robbery was the same except for substituting "robbery" for
"burglary." The jury found both special circumstances true.
B. Analysis
Laurie contends the special circumstance findings must be reversed because the
verdict forms did not specifically reference the special circumstances or the applicable
Penal Code sections, and the jury did not expressly find that she, as an aider and abettor,
either intended to kill or acted with reckless indifference to human life. She further
5 contends that the jury's failure to make specific findings resulted in a violation of her
constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We
reject these arguments.
Penal Code section 190.2, subdivision (a)(17), provides for a sentence of death or
life in prison without the possibility of parole where "[t]he murder was committed while
the defendant was engaged in, or was an accomplice in, the commission of, attempted
commission of" a robbery or burglary. (Undesignated statutory references are to the
Penal Code.) To impose this sentence on an aider and abettor, as opposed to the actual
killer, the aider and abettor must have either intended to kill or acted with reckless
indifference to human life. (§ 190.2, subds. (c), (d).)
"[A] criminal jury has the right to return a general verdict which does not specify
how it applied the law to the facts, or for that matter, what law was applied or what facts
were found." (Ballard v. Uribe (1986) 41 Cal.3d 564, 599.) The jurors are "to reach a
conclusion as to whether or not the charged special circumstance is true by applying legal
principles on which they are instructed to the evidence presented to them." (People v.
Davenport (1985) 41 Cal.3d 247, 274 (Davenport).)
In Davenport, the jury found true the special circumstance of murder involving the
infliction of torture. (Davenport, supra, 41 Cal.3d at p. 273.) On appeal, the defendant
complained that the torture murder special circumstance finding was insufficient because
the verdict form failed to specify the jury's finding of two "essential elements" of that
special circumstance, namely that the murder was intentional and involved infliction of
extreme pain. (Ibid.) The verdict form for the special circumstance required only that
6 the jury record its ultimate conclusion that the circumstance was true. (Ibid.) Our
Supreme Court rejected the defendant's argument, concluding the jury need only find the
special circumstance is true and it is unnecessary to find the facts on which that
determination is based. (Id. at pp. 273-275.)
Similarly, in People v. Lobato (2003) 109 Cal.App.4th 762 (Lobato), the
defendant was charged with being "substantially involved" in a conspiracy relating to the
sale, transportation or possession of methamphetamine that exceeded four kilograms by
weight. The verdict form in Lobato omitted a specific finding that the defendant was
"substantially involved" in the conspiracy, and Lobato argued that the lack of a finding of
substantial involvement constituted reversible error. The Lobato court rejected the
defendant's argument because the jury had been instructed that the defendant must have
been " 'substantially involved' " in the conspiracy. (Lobato, at pp. 765-766.) The court
stated that, "where the jury is fully instructed as to each element of the enhancement, it is
not necessary for the verdict to enumerate each of those elements. [Citation.]" (Id. at p.
766.)
Here, we see no reason to depart from the holdings in Davenport, supra, 41 Cal.3d
247, and Lobato, supra, 109 Cal.App.4th 762. Laurie concedes the jury was "properly
and accurately" instructed with "what it was required to find in order to return a true
finding as to the burglary and robbery special circumstance allegations." The jury found
both special circumstance allegations to be true. While the verdict forms did not require
specific findings as to whether Laurie intended to kill John or acted with reckless
indifference to human life, those findings were not required. (See Davenport, at pp. 273-
7 275; Lobato, at p. 766.) The jury only needed to find the special circumstances to be true
and did not need to expressly make a finding as to each element where, as here, it was
properly instructed as to each required element. (Lobato, at p. 766.) Moreover, we reject
Laurie's contention that the verdict forms were inadequate because they did not reference
that they pertained to the special circumstance allegations. The verdict forms were
clearly labeled with "First Special Circumstance as to Count 1" and "Second Special
Circumstance as to Count 1."
Lastly, we reject Laurie's argument that the jury's failure to make specific findings
resulted in a violation of her constitutional rights under Apprendi, supra, 530 U.S. 466.
As stated in Lobato, supra, 109 Cal.App.4th at p. 767, Apprendi "does not purport to
require any written findings which expressly detail every element of an enhancement. It
requires only that the jury find, beyond a reasonable doubt, every element of a sentence
enhancement." Here, the trial court properly instructed the jury on the elements of the
special circumstance allegations. We presume the jury followed the instructions and
made the required findings as instructed. Accordingly, there was no Apprendi violation.
II. Alleged Instructional Error
The trial court instructed the jury with the elements required to find Defendants
guilty of burglary. The trial court went on to instruct the jury that "[a] spouse is not
permitted to commit or aid and abet a theft either by robbery or burglary against another
spouse, even if they have a legal right to the property that was taken." The prosecutor
went on to argue that "one spouse cannot take the property from another spouse, either
8 through theft or through robbery or burglary, even if they have a legal right. Even if they
can say, 'Hey, you know, that's 50 percent mine, or whatever.' "
Citing People v. Gauze (1975) 15 Cal.3d 709 (Gauze), Laurie argues the trial court
erred by failing to instruct the jury sua sponte that a person cannot be guilty of
burglarizing one's own residence and instead providing a contrary instruction. We reject
this argument.
" 'In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury's understanding of the case.' " (People v. Anderson (2011) 51 Cal.4th 989, 996-
997.) This duty may include giving to the jury the essential elements of a charged
offense. (People v. Breverman (1998) 19 Cal.4th 142, 155.)
In Gauze, the defendant entered his apartment and shot his roommate. (Gauze,
supra, 15 Cal.3d at p. 711.) The Gauze court concluded he could not be convicted of
burglary because a person cannot burglarize his or her own home. (Id. at p. 714.) The
court underscored that the defendant "had an absolute right to enter the apartment . . . that
could not be conditioned on the consent of [his] roommates[;] [he] could not be 'refused
admission at the threshold' of his apartment, or be 'ejected from the premises after the
entry was accomplished.' " (Ibid.) Gauze is easily distinguishable from the instant case
as Laurie did not have an unconditional right to enter the premises nor to instruct a third
party to enter it for an unlawful purpose.
This case is similar to People v. Sears (1965) 62 Cal.2d 737 (Sears). In Sears, the
evidence showed that a husband had moved out of the family home three weeks before
9 reentering the home with the intent to assault his wife. (Id. at pp. 740, 745.) The Sears
court held the husband's conduct could constitute burglary because he could not claim a
right to enter the residence without permission as he had moved out three weeks before.
(Id. at p. 746.) Additionally, the Sears court noted that the entry for burglary need not be
a trespass, and that "[o]ne who enters a room or building with the intent to commit a
felony is guilty of burglary even though permission to enter has been extended to him
personally or as a member of the public." (Ibid.) Sears concluded that even if the
husband had a right to enter the home for a lawful purpose, his "entry still constitute[d]
burglary if accomplished with the intent to commit a felonious assault within it." (Ibid.;
see also People v. Pendleton (1979) 25 Cal.3d 371, 382 [burglary occurs even if
defendant entered with consent if defendant does not have "unconditional possessory
right to enter"]; People v. Smith (2006) 142 Cal.App.4th 923, 929-932 [husband subject
to court order not to enter family home after he assaulted his wife could be convicted of
burglary of home]; People v. Davenport (1990) 219 Cal.App.3d 885, 892 [husband who
had moved out of family cabin, relinquished key, and removed some of his property
could be convicted of burglary of cabin].)
Here, the evidence clearly established that Laurie had moved out of the home she
shared with John. Moreover, John had changed the locks to keep her out. There is also
evidence in the record that suggests Laurie did not have any possessory interest in the
residence. For example, Laurie readily admitted that she did not own the residence;
rather, it was held in trust for Jacklyn. Under these circumstances, once Laurie moved
out, she no longer had the right to enter the premises without John's permission.
10 Even if Laurie had the right to enter the premises, she did not have the right to
enter to commit a crime or to instruct someone else to commit a crime on the premises.
As explained in Gauze regarding the analogous situation of entry into a store: " '[A] party
who enters with the intention to commit a felony enters without an invitation. He is not
one of the public invited, nor is he entitled to enter. Such a party could be refused
admission at the threshold, or ejected from the premises after the entry was
accomplished.' . . . [A] person has an implied invitation to enter a store during business
hours for legal purposes only." (Gauze, supra, 15 Cal.3d at p. 713.)
There is no evidence in the record to suggest that Laurie gave Gallion permission
to enter John's residence for a lawful purpose. Laurie did not seek to retrieve her
belongings; rather, she instructed Gallion to rob her husband and told Gallion where to
find a safe that held several handguns and approximately $7,000 to $9,000. There is no
indication that the safe or the items therein belonged to Laurie. Accordingly, she did not
have a right to enter the premises or give anyone else permission to enter to retrieve those
items.
Based on the foregoing, we see no error in the trial court's failure to instruct the
jury that a person cannot burglarize her own home, or with the trial court's instruction
that "[a] spouse is not permitted to commit or aid and abet a theft either by robbery or
burglary against another spouse, even if they may have a legal right to the property that
was taken." The trial court's instructions squarely comported with the law. Thus, we
reject Laurie's claim of instructional error.
11 III. Constitutionality of Felony Murder Special Circumstance as Applied to Gallion
Gallion argues the felony murder special circumstance as applied to him, the
actual killer, is unconstitutionally vague because there is no meaningful distinction
between first degree felony murder and the felony murder special circumstance, it lacks
sufficient definiteness, and gives the prosecutor unfettered discretion to choose which
crime to charge. We reject Gallion's arguments.
A penal statute is unconstitutionally vague if it fails to "define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement." (Kolender v. Lawson (1983) 461 U.S. 352, 357.) Challenges to statutes
on grounds of vagueness that do not threaten First Amendment interests are examined in
light of the facts of the case at hand, and "the statute is judged on an as-applied basis."
(Maynard v. Cartwright (1988) 486 U.S. 356, 361.)
"All murder which is perpetrated . . . by any other kind of willful, deliberate, and
premeditated killing . . . is murder of the first degree." (§ 189.) The penalty for first
degree murder is death, life imprisonment without the possibility of parole, or
imprisonment for a term of 25 years to life. (§ 190, subd. (a).) In contrast, the penalty
for murder committed with specified special circumstances is death or life imprisonment
without the possibility of parole. (§ 190.2, subd. (a).)
As Gallion recognizes, this Court rejected his arguments in People v. Andreasen
(2013) 214 Cal.App.4th 70, 79 (Andreasen). In that case, the defendant asserted a
constitutional challenge to the felony murder special circumstance statute. Like Gallion,
12 the defendant in Andreasen claimed that as applied to the actual perpetrator of the killing,
the felony murder offense (§ 189) is indistinguishable from the felony murder special
circumstance (§ 190.2, subd. (a)(17)). Thus, the defendant asserted, he had no way of
anticipating whether he would be subjected to the possibility of death or life in prison
without parole as opposed to life with the possibility of parole, and the prosecutor had
unfettered discretion to select the charge. (Andreasen, at p. 79.)
After reviewing the pertinent statutes, this Court stated, "These statutes provided
defendant with notice that if he commits a statutorily specified felony and kills someone
during that felony, he could be subjected to a sentence of 25 years to life with the
possibility of parole, life without parole, or death. Defendant had notice as to the
proscribed conduct and potential punishment." (Andreasen, supra, 214 Cal.App.4th at p.
80.) In Andreasen, this Court also rejected defendant's contention that section 189 and
section 190.2, subdivision (a)(17) are indistinguishable, stating, "[T]he felony-murder
offense is established merely upon a showing that the defendant killed during the
commission or attempted commission of the felony, whereas the felony-murder special
circumstance requires an additional showing that the intent to commit the felony was
independent of the killing." (Andreasen, at p. 80.)
"The mere fact that the prosecution has discretion to select which punishment it
will seek does not render a statute unconstitutionally vague or create an improper risk of
arbitrary enforcement of a criminal statute." (Andreasen, supra, 214 Cal.App.4th at p.
80.) "The courts have repeatedly rejected constitutional challenges to the imposition of
the special circumstance punishment on the direct killer, even though the statute can
13 operate to punish a felony murderer who kills unintentionally more harshly than a simple
murderer who kills intentionally." (Id. at p. 81.)
We see no reason to depart from the reasoning and conclusions in Andreasen,
supra, 214 Cal.App.4th at pp. 79-82. Based on the special circumstance statute, Gallion
had notice that if he committed a statutorily-specified felony and killed someone during
that felony, he could be subjected to a sentence of life without the possibility of parole or
death. The prosecutor's discretion to select the charge against Gallion does not render the
felony murder special circumstance unconstitutional. "The prosecutor may be influenced
by the penalties available upon conviction, but this fact, standing alone, does not give rise
to a violation of the Equal Protection or Due Process Clause." (United States v.
Batchelder (1979) 442 U.S. 114, 125.) Lastly, the felony murder special circumstance is
not unconstitutionally vague as there is a meaningful distinction when compared to first
degree felony murder, namely that the special circumstance requires an additional
showing that the intent to commit the felony was independent of the murder. (Andreasen,
at p. 80.)
Based on the foregoing, Gallion's constitutional vagueness challenge lacks merit.
IV. Gallion's Parole Revocation Restitution Fine
The trial court sentenced Gallion to life without the possibility of parole for John's
murder and stayed his sentences for the robbery and burglary. The trial court imposed a
parole revocation restitution fine of $10,000 pursuant to section 1202.45. Gallion argues
the trial court erred in imposing the parole revocation restitution fine because his
sentence does not include a determinate term and therefore does not include a period of
14 parole. The Attorney General concedes, and we agree, that the trial court erred in
imposing the fine.
A parole revocation restitution fine is not applicable in cases where, as here, the
defendant's sentence includes a term of life without the possibility of parole. (People v.
Oganesyan (1999) 70 Cal.App.4th 1178, 1185.) Accordingly, we modify the judgment
against Gallion to strike the parole revocation restitution fine.
DISPOSITION
The judgment against Laurie Cone is affirmed. The judgment against Gallion is
modified to strike the $10,000 parole revocation restitution fine under section 1202.45.
As so modified, the judgment against Gallion is affirmed. The trial court is directed to
amend Gallion's abstract of judgment to reflect this modification and to forward a copy to
the Department of Corrections and Rehabilitation.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.