People v. Denner

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL DENNER, Defendant and Appellant.

C086443

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

November 12, 2019

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. STKCRFECOD20150006548 and SF131576B)

Defendant Joseph Michael Denner was charged with first degree murder (Pen. Code, § 187, subd. (a)) and found guilty by the jury of the lesser included offense of second degree murder (id., § 189, subd. (b)).

Defendant testified at trial that he saw codefendant Donald Rorabaugh assaulting the victim, Edward Magana, and Rorabaugh forced defendant to join in the assault and help dispose of Magana's body by threatening to kill defendant and his family. Defendant argues that the trial court erred in failing to instruct the jury that duress is a defense to aiding and abetting murder, even though he concedes that the California Supreme Court in People v. Anderson (2002) 28 Cal.4th 767, 784 (Anderson), held that duress is not a defense to any form of murder. Defendant argues that the intent required to aid and abet a murder may differ from the intent to commit murder.

However, in People v. Vieira (2005) 35 Cal.4th 264 (Vieira), the California Supreme Court held that "because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, we further reject defendant's argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder." (Id. at p. 290, citing Anderson, supra, 28 Cal.4th at p. 784.) Vieira bars an instruction that duress is a defense to aiding and abetting murder.

Defendant also argues that the trial court failed to exercise its discretion to determine whether he was eligible for probation under the mistaken belief that he was statutorily ineligible. However, in denying probation, the court did not state that defendant was ineligible, but rather articulated the factors in aggravation and mitigation set forth in California Rules of Court, rule 4.414.

The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Joni Brunetti and her husband live on a property that borders on an irrigation canal. About 2:30 a.m. on May 24, 2015, they were awakened by their dogs barking. Brunetti heard a vehicle that sounded "a little rougher than a car" but she couldn't see it. The engine stopped and then started up again after 10 or 15 minutes. The next morning Brunetti went over to the canal when she saw police officers. There was a body in the canal.

Police found blood on the roadway that matched the DNA profile of Mr. Magana, who was identified as the victim, and drag marks from the road to the canal.

The autopsy of Mr. Magana noted bruising on his eyelids and abrasions on his face, head, abdomen, and arms. He had broken ribs and a bruised left lung. There were large bruises on his scalp and temple and bleeding on the surface of his brain caused by forceful blows to the head. Bleeding in the whites of his eyes, internal bleeding, and fractures in his neck indicated Mr. Magana had also been strangled. The pathologist conducting the autopsy could not say for certain whether Mr. Magana was alive or dead when he went into the canal, but blunt force trauma or strangulation would have killed him.

Four days after Mr. Magana's body was found, a police detective interviewed defendant. The video recording of the interview was played for the jury.¹ Defendant identified Rorabaugh in a photographic lineup as the person who killed Mr. Magana. Defendant accompanied the detective on a car ride where defendant identified the location of the house where Mr. Magana was assaulted and where Rorabaugh and defendant disposed of the body. Defendant also identified a location where a search found shirts, a backpack, a cellphone, USB cords, magazines, and a Gatorade bottle—all burned. At one point, defendant tried to jump out of the moving car but was restrained and handcuffed by police.

Mr. Magana's wife testified at trial that she did not know defendant but she knew Rorabaugh. She and her husband would sometimes drink with Rorabaugh at the 108 Sports Lounge in Riverbank.

The manager of the 108 Sports Lounge and a bartender saw defendant and Rorabaugh at the bar on the night Mr. Magana was killed. Mr. Magana was a regular at the bar.

A friend of defendant's, who also knew Rorabaugh, testified he met up with defendant at the bar and they stayed until closing time. The friend introduced defendant to Rorabaugh when he came in about 11:00 p.m.

The bartender testified that Rorabaugh left at closing time but defendant stayed and helped clean up the patio. Defendant left in a car with three men who had been in earlier and were wearing tuxedos.

A witness testified that he had come into the 108 Sports Lounge that night dressed in a tuxedo after a wedding and gave defendant a ride a few blocks from the bar.

Two women who had been at the bar until closing time testified they gave Rorabaugh a ride home. They testified that, when he left their car, he was greeted by a man that one witness could not see and the other could not see well enough to describe.

Rorabaugh's father testified that Rorabaugh lived with his father and grandmother in the garage of their home in Riverbank. Rorabaugh had a 1966 Oldsmobile Cutlass with a big block engine and exhaust pipes that were very loud. About 2:30 a.m. on May 24, 2015, Rorabaugh's father heard his son come home when he heard the sound of loud pipes. He saw his son go into the garage. His son left and returned around 4:30 a.m. Later that morning, he heard a conversation and saw his son talking to someone outside.

Video surveillance from a business in Riverbank showed a light-colored Cutlass at 2:54 a.m. on May 24, 2015, making a turn. Police located Rorabaugh's white 1966 Cutlass at a nearby ranch. Blood in the trunk of the car matched Mr. Magana's DNA profile. A DNA swab from the steering wheel matched Rorabaugh's profile and defendant was a possible major contributor to DNA on the door handle.

Defendant testified in his defense. He recounted that he went to the 108 Sports Lounge with a friend between 9:30 p.m. and 11:00 p.m. and stayed until after closing time. He had drunk five or six beers before going to the bar and drank another four beers and a shot of vodka while there. At last call, defendant went to the Shell station to buy beer. He returned to the bar and helped pick up cigarette butts on the patio. He testified he did not get a ride from the bar but acknowledged he might not remember. Defendant testified that he left to walk home.

On the way home, defendant saw a big man, Rorabaugh, on top of a man punching him in the face. Defendant said he had not met Rorabaugh before that night and could not recall being introduced to him or seeing him in the bar that night.

Defendant tried to pull the person on the bottom out from under Rorabaugh. Rorabaugh shoved defendant to the ground. Rorabaugh told defendant he had a gun, though defendant did not see one. Rorabaugh demanded defendant's wallet and looked at his driver's license. Rorabaugh said he knew where defendant lived and would kill him and his family if defendant did not help him. Rorabaugh claimed that Mr. Magana was a methamphetamine user who had been snooping around his property. Defendant had a cellphone but the battery was dead.

Rorabaugh kicked and stomped on Mr. Magana's head. He forced defendant to kick Mr. Magana. Rorabaugh then forced defendant to help him get Mr. Magana into the trunk of his car. Rorabaugh pushed defendant into the passenger seat of the car. As they drove, Rorabaugh continued to threaten defendant. Defendant tried to jump out of the car but could not get the door open.

When Rorabaugh stopped the car by the canal, he made defendant help him lift Mr. Magana out of the trunk. Mr. Magana was still alive, moaning and breathing a bubble of blood from his nose. Defendant saw blood in the trunk of the car. Defendant complied with Rorabaugh's demand to urinate on Mr. Magana's face and grab his penis so that defendant would leave his DNA. Rorabaugh dragged Mr. Magana to the canal and defendant heard a splash.

Rorabaugh told defendant to get back in the car and they drove back to Rorabaugh's house. Rorabaugh retrieved a backpack and Gatorade bottle full of gasoline. He said they "had a job to finish." They walked on a trail to a spot near the water. Rorabaugh took some things out of the backpack, put them on the backpack, poured gasoline on the pile, and set it on fire. They walked back to Rorabaugh's house and, when Rorabaugh went inside, defendant ran home.

During his interview with a police detective, defendant said he strangled Mr. Magana. Defendant testified at trial that he only said this to be cooperative. He believed Rorabaugh strangled Mr. Magana, though he did not see him do it.

Defendant testified he did not call the police right away out of fear of Rorabaugh. But finally he told his mother and she called the police. Defendant spoke to police and told them how he had discovered Rorabaugh beating Mr. Magana and what Rorabaugh had forced defendant to do. He identified Rorabaugh as the perpetrator during the police interview. He went for a ride with the police and showed them where Rorabaugh had beaten Mr. Magana, where Mr. Magana had been dumped in the canal, and where the backpack was burned.

Rorabaugh also testified in his defense. He is six feet two inches tall and weighs 375 pounds, the same as in 2015. On the night of May 23, 2015, he had been drinking at a friend's house. He drove his Cutlass back home at about 6:00 p.m. He returned to his friend's house and stayed...