P. v. Gorman 1/27/05 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A102310

Case Date: 04/27/2005

Preview:Filed 1/27/05 P. v. Gorman CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. MICHAEL THOMAS GORMAN, Defendant and Appellant. A102310 (Humboldt County Super. Ct. No. CR011617CS)

Appellant persuaded friends of his, a man and a woman, to gain entry to a stranger's motel room by offering him the woman's services as a prostitute. Their plan was that once inside the room, appellant's friends would obtain the victim's money either by robbery or by deception. While appellant's friends were in the motel room, one of them killed the victim. Appellant, his friends, and another man returned to the motel room after the victim's death and took the victim's money and belongings. A jury convicted appellant of felony murder and burglary. On this appeal, appellant argues: (1) that the jury instructions on felony murder did not adequately advise the jury of the need for a causal connection between the felony and the killing; (2) that the trial judge abused his discretion in admitting evidence that appellant used a racial slur to refer to the victim after his death; (3) that appellant's trial counsel's failure to object to the admission of appellant's pretrial statement to the police constituted ineffective assistance of counsel; and (4) that in selecting the upper term on the burglary count and directing that appellant's sentences be served consecutively, the 1

trial judge inappropriately relied on aggravating factors not found by a jury, in violation of Blakely v. Washington (2004) __ U.S. __ [124 S.Ct. 2531] (Blakely). We reject all of these contentions except for the Blakely argument as to the selection of the upper term for burglary, and affirm the judgment except insofar as resentencing is required on the burglary conviction. FACTS AND PROCEDURAL BACKGROUND On April 2, 2001,1 appellant and his friend Rachael Lane paid a visit to a man they knew named Shawn Harrison who occasionally sold methamphetamine. Troy Russell, Harrison's former brother-in-law, was also visiting Harrison at the time. Harrison told his visitors that, earlier that day, he had sold some methamphetamine to a man (later identified as Bruce James) who was staying at a nearby motel; he added that the man appeared to have a lot of cash and was interested in obtaining the services of a prostitute. Russell and Harrison had committed robberies together before, and the group discussed the idea of taking James's money from him. Russell was not interested in the idea, but appellant asked Harrison for James's room number at the motel. According to Rachael Lane, the discussion about "ripping [James] off" was just a joke, and was not serious. Russell testified that he never heard appellant use the word "rob." Later that evening, around 7:00 or 8:00 p.m., appellant and Rachael Lane went to the apartment of Amber Ladue, where they encountered Rachael Lane's brother, Michael Lane2, and his girlfriend, Florence Laurel Anderson, who was a friend of Ladue's. Ladue lived not far from the motel where James was staying. Lane and Anderson were staying with their friend Gordon Combs in another apartment in the same building, and sometimes borrowed Ladue's apartment so they could have some privacy. Lane and

All further references to dates are to the year 2001 unless otherwise specified. Michael Lane was also a friend of appellant's and was the actual perpetrator of the murder of which both he and appellant were convicted. He was also a principal witness for the prosecution at appellant's trial. For simplicity and clarity, we refer to Michael Lane as Lane, and to Rachael Lane by her full name.
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Anderson asked appellant and Rachael Lane if they had any drugs,3 and appellant responded by suggesting that they could obtain cash from James, either by fraudulently proposing to get drugs for him and keeping the money, or by offering him Anderson's services as a prostitute. Lane did not want to feign a drug deal with James. Anderson was willing to act (or at least pose4) as a prostitute to get James's money, but Lane did not want her to do so. Nonetheless, Anderson and Lane agreed with appellant that the three of them would go to the motel, that Anderson would offer James her services as a prostitute, and that appellant would receive a share of whatever money Anderson and Lane could obtain from James, or of the drugs they would buy with it. Lane denied that they discussed robbing James. Before going to the motel, either Lane or Anderson asked Ladue for a knife with which to protect themselves, and told Ladue that appellant was "sending them [Anderson and Lane] on a mission." Appellant was there when they did so, but did not say anything. Ladue gave Lane a knife, and then went to sleep.5

Appellant, Rachael Lane, Russell, Lane, Anderson, Ladue, and Combs were all methamphetamine users at the time of these events. 4 There was a conflict in the evidence as to whether Anderson had previously worked as a prostitute, and as to whether the plan was that she would really offer her services as such to James, or merely pretend to be willing to do so. Lane testified at trial that Anderson fairly frequently sold her services for drugs or for money to buy drugs, and that he had accompanied her, for her protection, on a few prior occasions when she had conducted such a transaction with a stranger. He had told the police at one point during their investigation that Anderson never worked as a prostitute while she was involved with him, but he testified at trial that this statement was true only in the sense that Anderson prostituted herself solely to obtain drugs (or money for drugs), and not as a regular occupation. In any event, there is substantial evidence in the record that Lane and Anderson gained entry to James's motel room by suggesting to him

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