P. v. Walker 5/24/07 CA3

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State: California

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

Docket No: C051926

Case Date: 08/09/2007

Preview:Filed 5/24/07

P. v. Walker CA3

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, Plaintiff and Respondent, C051926 v. (Super. Ct. No. SF093973A) RAYMOND WALKER, Defendant and Appellant.

A jury found defendant Raymond Walker guilty of first degree murder and attempted second degree robbery, finding true the special circumstance that defendant committed the murder during the commission of the attempted robbery, and also finding true the special allegations that he personally used a firearm with respect to both counts. The court sentenced defendant to

an aggregate term of 10 years plus life in prison without the possibility of parole. On appeal, defendant contends reversal of judgment as to both counts is required because (1) without defendant's

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statement to police, there was insufficient evidence to establish the corpus delicti for attempted robbery, and (2) his statement to police was the result of coercion and therefore inadmissible. Defendant also contends the trial court's

imposition of the upper term as to the gun use enhancement for counts 1 and 2 violated his Sixth Amendment rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND On the evening of November 11, 2004, defendant left his apartment after having a fight with his live-in girlfriend, Dominic Laws (with whom he had a child), about "bills and money and [defendant's] reluctance to help out with support of their child." He returned early the next morning, intoxicated and

"ranting and raving," and continued to argue with Laws about money. After pacing back and forth for awhile, defendant left

wearing a dark hooded sweatshirt and dark pants. That same morning, Chandrika Dip, a taxicab driver, left for work at approximately 6:15 a.m. His wife gave him about $4, He had no

which he added to the $3 already in his wallet.

injuries to his face when he left for work that morning. Sometime before 7:15 a.m., Dip picked the defendant up outside the bus station across the street from defendant's apartment. Defendant asked to be taken to Conway, but had Dip He eventually told Dip to Dip

take several detours along the way.

stop on Kansas Street, a short distance from a school.

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asked for the cab fare, but defendant did not have any money to pay it. Instead, defendant pulled a gun from the front pocket

of his sweatshirt, pointed it at Dip and said something like, "give me your money." money. Dip told defendant he did not have any

When Dip reached for the gun, defendant shot him,

hitting him in the forehead and killing him. Defendant got out of the cab, walked around to the driver's side and shook Dip, trying to "wake him up." He checked Dip's

pants pockets for money, causing several small pieces of paper to fall out of Dip's left front pocket. pockets of Dip's coat.1 He did not check the

Not finding any money, he put the car in

park, turned the engine off, closed the door and left. Defendant arrived at the home of his sister, Shaneen Walker, sometime between 7:00 and 8:00 a.m. that morning. He

was jittery and smelled of alcohol, and looked like he had been up all night. Defendant was still wearing the hooded sweatshirt He told his sister he

he had put on earlier that day.

accidentally shot a cab driver over by the school, telling her he struggled with the driver for the gun and it went off "on accident." When his sister asked if he was trying to rob the

cab driver, defendant said, "No," and told her he thought,

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During the police interview, defendant was asked whether he searched Dip's shoes for money. Defendant responded, "I don't know." It also appears that he may have made an inaudible response denying that same question earlier in the interview.

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"maybe the cab driver thought I was trying to rob him." urged defendant to turn himself in.

Shaneen

After changing into some clothes his sister gave him, defendant made two phone calls, one to an individual later identified as Kenta Banks. driver. He told Banks that he shot a cab

Banks showed up at Shaneen's house approximately 40

minutes later and, after staying another half-hour or so, left with the defendant, who took his clothes and the gun and told Shaneen he was going to get rid of them. Banks took defendant

to the levee and defendant threw the gun in the water. Approximately 7:15 a.m. that morning, several young girls walking to school noticed the taxicab parked on Kansas Street. Thinking it was unusual that the headlights were on and the windshield wipers were part way up, they went to take a closer look. The girls saw Dip slumped in the driver's seat with his

head and body leaning towards the passenger side of the car. There was blood on the passenger seat. One of the girls called

911 while the others ran to school and reported what they saw to school officials. Emergency personnel arrived on the scene approximately 7:30 a.m. and removed Dip's body from the car. There was a

significant amount of blood on the center console, as well as the passenger seat. The keys were still in the ignition and the Several small pieces of paper were

meter was still running.

found on the floorboard on the driver's side of the cab. Sheriff's deputies found 91 cents in Dip's pocket.

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Laws returned home that evening sometime after 5:00 p.m. Defendant was already there when she arrived; however, he was wearing different clothes than those he had been wearing when he left the apartment that morning. Defendant told Laws he shot a

cab driver, but repeated over and over that it was an accident, saying nothing about robbing or attempting to rob the driver. An autopsy revealed that Dip died of a single gunshot wound to the right forehead. He had minor injuries to his face

(abrasions of the forehead and a tiny cut on his chin) suffered either before or contemporaneously with the gunshot wound. The

coroner concluded the gunshot was most likely fired two to six inches away from Dip's head. A police criminalist examined the cab and noted, among other things, that (1) the glove compartment did not appear to have been "rifled" through, (2) the center console did not appear to have been opened after the blood was deposited on it, and (3) Dip's wallet was still in the center console. Police received phone calls on November 17 and 18, 2004, from an unidentified female, identifying defendant as a suspect and providing information as to his whereabouts. Defendant was

arrested at his home and taken into custody without incident. The information charged defendant with first degree felony murder in violation of Penal Code section 1872 (count 1) and

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Hereafter, undesignated statutory references are to the Penal Code.

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attempted second degree robbery in violation of sections 664 and 211 (count 2). A special circumstance was also charged as to

count 1, alleging that the murder was committed while defendant was attempting to commit the crime of robbery within the meaning of section 190.2, subdivision (a)(17)(i).3 Firearm enhancements

were alleged as to both counts -- intentional and personal discharge of a firearm causing great bodily injury in violation of section 12022.53, subdivision (d) as to count 1, and personal use of a firearm in violation of section 12022.5, subdivision (a) as to count 2. Prior to trial, defendant filed a motion to dismiss count 2 pursuant to section 995. The motion was denied.

Following a jury trial, defendant was found guilty of both counts. The jury found true the special circumstance

allegation, as well as the allegation of use of a firearm as to both counts.4 Prior to sentencing, defendant filed a motion, pursuant to section 1181 for new trial and modification of the verdict, arguing there was insufficient evidence to support the jury's

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In reviewing the probation report at sentencing, the parties agreed that the reference to section 190.2, subdivision (a)(17)(i) (regarding "train wrecking") in both the information and the probation report was incorrect, and further agreed to revise the probation report to reflect the corrected reference as section 190.2, subdivision (a)(17)(A) (regarding "robbery").
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By agreement of the parties, the gun use allegation as to count 1 was changed to allege section 12022.5, subdivision (a) in order to accurately reflect the jury's verdict.

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verdict that he committed the killing in order to carry out or advance the commission of the robbery. was denied. The court sentenced defendant to a term of life without the possibility of parole as to count 1, plus the upper term of 10 years for the gun use enhancement. The court also imposed the The section 1181 motion

midterm sentence of two years for count 2, plus 10 years for the gun use enhancement, both of which were stayed pursuant to section 654. Defendant filed a timely notice of appeal. DISCUSSION I. Independent Proof of the Corpus Delicti of Attempted Robbery Defendant contends that the evidence at trial was insufficient to establish the corpus delicti of attempted robbery. He also challenges the constitutionality of section

190.41 (proof of special circumstance by defendant's extrajudicial statement) as it applies to felony-based specialcircumstance allegations. We disagree with the first contention

and therefore need not address the second. "In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held,

the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or

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admissions of the defendant.

[Citations.]

Though mandated by

no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citation.] California decisions have [Citation.]

applied it at least since the 1860's. [

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