Filed 11/30/15 P. v. Kurre 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C074709

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F02665)

         v.

JASMINE LEVANNA KURRE,

                   Defendant and Appellant.




         Defendant Jasmine Levanna Kurre lured the victim, Branden Rose, out of his
apartment to be severely beaten by at least two men, after Rose, defendant, and one other
man had a sexual encounter two days prior to the beating when defendant’s boyfriend
was out of town. During the beating, the attackers took Rose’s cell phone and $10 to
$15. The People alleged defendant was an aider and abettor. The jury found defendant
guilty of assault with force likely to produce great bodily injury and battery with serious
bodily injury, but it found her not guilty of robbery and making a false police report.


                                                             1
        On appeal, defendant raises the following three contentions: (1) the court erred in
allowing the People to use her prearrest silence as evidence of her guilt; (2) the People
presented insufficient evidence of the crimes because simply being present at the crime
scene and failing to stop the crimes did not make her an aider and abettor; and (3) the
court erred in requiring her to pay restitution for the stolen cell phone and money because
she was acquitted of robbery.
        We affirm because: (1) the instances when defendant refused to identify who she
was with during the beating were not invocations of her right to remain silent;
(2) defendant was much more than simply present at the crime scene -- she had a motive
for the beating, knew what her cohorts were doing, and helped them commit the crimes;
and (3) defendant’s actions were a substantial factor in causing the loss of Rose’s phone
and money, and her relationship to Rose’s loss was not simply by way of the robbery.
                   FACTUAL AND PROCEDURAL BACKGROUND
        On February 15, 2011, defendant, her friend Tatyona Voznyuk, Rose, and his
friend Pavel Chernykh were hanging out at Rose’s apartment in Citrus Heights.
        Later that evening while they were all drinking at a bar, defendant mentioned she
had a boyfriend who was out of town. After staying at the bar a while longer, the four
returned to Rose’s apartment. At the apartment, the four drank more alcohol, and
defendant had sex with Chernykh and Rose, at one point simultaneously. According to
Rose, all the sex he engaged in or saw that night was consensual. With defendant’s
consent, Chernykh taped portions of the sexual encounters on his cell phone.
        A little after 7:00 the next morning, defendant and Voznyuk left Rose’s apartment.
Before leaving, defendant asked Chernykh for his cell phone number. Then, Rose and
Chernykh walked defendant and Voznyuk to their car, and Rose gave the two women
hugs.
        Thereafter, defendant began texting Chernykh “regular texts” to get to know him.
In one of those texts, defendant mentioned that she left her identification and her hair

                                             2
extension at Rose’s apartment. Chernykh texted Rose about them, and Rose said he had
found defendant’s identification.
       On February 17, 2011, defendant texted Rose that she wanted to pick up her
identification, and defendant told her to text or call him when she arrived at his apartment
complex. Around 6:00 p.m., defendant called Rose, told him she was downstairs at his
apartment complex, and told him to come downstairs with her license because she was in
a hurry. It was dark, and Rose walked downstairs. Once downstairs, Rose saw defendant
standing underneath the parking structure with her arms crossed. He said, “hi,” but she
stood there straight faced, seeming nervous. A man came from behind Rose and bear
hugged him. Rose thought it was his roommate playing a trick on him, so he smiled.
Rose looked at defendant, who was staring to the right. Rose was then attacked by
another man coming from the direction where defendant had been staring, who hit Rose
on his jawbone. Rose fell to the ground, and then the two men starting kicking and
punching Rose all over his body, including his head, ear, neck, and back. There was
another man who was calling orders to the two men beating Rose. Defendant said
nothing. In the middle of the beating, one of the attackers said, “You want to rape my
girl?” Defendant was very surprised and responded, “I would never rape your girl.” The
beating continued for a total of five to seven minutes. The beating ended when Rose
yelled, “you would do this to a military personnel?” The caller then told the attackers to
“[g]o into [Rose’s] pockets.” The attackers took Rose’s cell phone and $10 to $15, and
then all of the perpetrators took off.
       Rose was stranded because he could not call for help, and he was in need of help
because he had been severely beaten. Eventually he made it back to his apartment, and
with his roommate’s help, he called 911. Citrus Heights Police Officer Chad Morris and
his partner came to Rose’s apartment. Officer Morris said that the trauma to Rose’s face
was among the worst he had ever seen as the result of a fight.



                                             3
       A little while later, Officer Morris knocked at defendant’s door for close to an
hour without receiving an answer, although the lights and television were on and a fire
was burning in the fireplace. Officer Morris left his business card with a handwritten
note for defendant, which read, “Call me so we can work this out. Otherwise, I will be
issuing a warrant for your arrest.” The business card was from the Citrus Heights Police
Department. Officer Morris never heard from defendant.
       The next morning, February 18, 2011, defendant went to the Sacramento City
Police Department and reported she had been raped on February 16 in Citrus Heights.
Sacramento police called Citrus Heights Police Officer Fernando Ruotolo, told him that,
and also told him that defendant was a suspect in an assault and robbery. Sacramento
police asked Officer Ruotolo to investigate the rape.
       Officer Ruotolo met defendant at the Sacramento City Police Department to
interview her about the rape. The Sacramento Police Department offered its interview
room, but Ruotolo declined because he was told he would not be able to leave the
interview room. With defendant’s permission, he drove her (in the front seat of the patrol
car) to the Citrus Heights Police Station, because it did not have that restriction. At the
interview, “it was like pulling teeth” to get defendant to talk about the rape allegation.
Officer Ruotolo then asked defendant how she got her driver’s license back. She said, “I
went over there and got it.” Officer Ruotolo responded, “I’m sorry, What’s that?”
Defendant responded, “I wanna go. I wanna go to the hospital. My stomach hurts really
bad . . . .” Defendant then talked about the rape. Thereafter, Officer Ruotolo returned to
the topic of retrieving her driver’s license. He asked, “When you went to get the driver’s
license, um, and luckily you were thinking ahead of time, um, for your safety, uh, who all
went with you?” Defendant responded, “I don’t want to really talk about that.” She
asked to go to the hospital because her stomach hurt. Officer Ruotolo asked whether
Voznyuk went with her to pick up her license. Defendant responded “no,” because
Voznyuk got called into work. Defendant then talked more about the rape. Ruotolo

                                              4
responded, “there’s some information that you’re withholding,” and then asked her again
who went with her to retrieve her driver’s license. Defendant responded, “I’m scared.
And like you told me that I could leave at any time.” Officer Ruotolo said she could
leave, and the interview ended. Thereafter, Officer Ronald Pfleger arrested her in the
hallway, noting that while she was free to leave on the rape investigation, he was here to
talk with her about “something else.”
       One of the police officers examined defendant’s cell phone. On February 16,
2011, the day before Rose was attacked, defendant texted Andrew Turner that she had
been raped. Turner responded by text with the following messages: “I have friends with
scary amounts of power. I can change the[ir] li[f]e for the worse if you ask me to,” and
“I don’t have to have him killed, but I can make it impossible for him to get much done
for the rest of his life.” Defendant responded, “I hate him so much Andrew.”
                                        DISCUSSION
                                               I
                  The Court Did Not Err In Allowing The People To Use
                Defendant’s Refusal To Answer Certain Questions During
                      The Police Interview As Evidence Of Her Guilt
       Defendant contends she “expressly invoked her Fifth Amendment rights” to
remain silent when she was asked during a police interview who was with her during the
beating (i.e., when she went to retrieve her identification), and therefore, the trial court
erred in allowing the People to use her prearrest silence as substantive evidence of her
guilt. We disagree, because the three instances when defendant refused to identify who
she was with during the beating were not invocations of her right to remain silent.
       The interview to which defendant is referring occurred the morning after the
beating at the Citrus Heights Police Station with Officer Ruotolo. The People, in closing
argument, used defendant’s refusal to answer Officer Ruotolo’s questions about who she
was with when she went to retrieve her identification as an inference of her guilt on the

                                               5
charged crimes. Specifically, the People argued that the “only reasonable interpretation”
“as to why she won’t tell him who was with her when she went to get her ID” was “that
she brought the attackers to beat up and rob [the victim].”
       “[T]he Fifth Amendment privilege against self-incrimination does not
categorically bar the prosecution from relying on a defendant’s pretrial silence. . . . The
prosecution may . . . use a defendant’s prearrest silence in response to an officer’s
question as substantive evidence of guilt, provided the defendant has not expressly
invoked the privilege.” (People v. Tom (2014) 59 Cal.4th 1210, 1223.) “[A] suspect’s
invocation of the right to silence” requires “an unambiguous and unequivocal assertion.”
(People v. Nelson (2012) 53 Cal.4th 367, 377.) “If an ambiguous act, omission, or
statement could require police to end the interrogation, police would be required to make
difficult decisions about an accused’s unclear intent and face the consequence of
suppression ‘if they guess wrong.’ ” (Berghuis v. Thompkins (2010) 560 U.S. 370, 382
[176 L.Ed.2d 1098, 1111].) “In such circumstances, suppression of a voluntary
confession ‘would place a significant burden on society’s interest in prosecuting criminal
activity.’ ” (Nelson, p. 378, quoting Berghuis v. Thompkins, supra, 560 U.S. at p. 382
[176 L.Ed.2d at p. 1111].)
       Here, the three instances when defendant refused to identify who she was with
during the beating were not invocations of her right to remain silent. The first time, when
Officer Ruotolo asked defendant, “What’s that” to clarify defendant’s response that, “I
went over there and got it,” defendant’s response was only, “I wanna go. I wanna go to
the hospital. My stomach hurts really bad . . . .” Defendant was saying only that she
wanted to go because her stomach hurt. The second time, when Officer Ruotolo asked,
“When you went to get the driver’s license, um, and luckily you were thinking ahead of
time, um, for your safety, uh, who all went with you,” defendant responded, “I don’t want
to really talk about that.” Our Supreme Court has specifically ruled that this response is
not an invocation of a defendant’s right to remain silent. (People v. Musselwhite (1998)

                                              6
17 Cal.4th 1216, 1240 [defendant’s statement, ‘ “I really don’t want to talk about that,” ’
did not amount to an invocation of his right to remain silent].) Indeed, as evidenced by
the next statement defendant made about who she was not with when she went to retrieve
her license (i.e., Voznyuk, because she was called into work), a defendant may indicate a
willingness to talk about certain subjects and then “an unwillingness to discuss certain
[other] subjects without manifesting a desire to terminate ‘an interrogation already in
progress.’ ” (People v. Silva (1988) 45 Cal.3d 604, 629-630.) Finally, the third time,
when Officer Ruotolo said “there’s some information that you’re withholding,” and then
asked her again who went with her to retrieve her driver’s license, defendant responded,
“I’m scared,” there was no invocation of her right to remain silent, equivocal or not. As
such, the People did not violate defendant’s Fifth Amendment privilege against self-
incrimination in using her responses against her.
                                             II
        There Was Sufficient Evidence Defendant Aided And Abetted The Crimes
       Defendant contends the People presented insufficient evidence of the crimes
because her mere presence at the crime scene and failure to stop the crimes did not make
her an aider and abettor. As we explain, the problem with defendant’s argument is that
defendant was much more than simply present at the crime scene -- she had a motive for
the beatings, knew what her cohorts were doing, and helped them commit the offenses.
(See People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [“[a]n aider and abettor . . . must
‘act with knowledge of the criminal purpose of the perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating commission of, the
offense’ ”].)
       The day before Rose was attacked, defendant texted Andrew Turner that she had
been raped. Turner responded that, “I have friends with scary amounts of power. I can
change the[ir] li[f]e for the worse if you ask me to,” and “I don’t have to have him killed,
but I can make it impossible for him to get much done for the rest of his life.” Defendant

                                             7
responded by stating, “I hate him so much Andrew.” From this, the jury could infer that
defendant had a motive for the beating of Rose. The next day, defendant lured Rose out
of his apartment so that her cohorts could beat him. Specifically, defendant called Rose,
told him she was downstairs at his apartment complex and told him to come downstairs
with her license because she was in a hurry. From this, the jury could reasonably infer
that defendant lured Rose to a vulnerable location by bringing him downstairs in the dark
away from his roommate to a place where he would be attacked without anybody to come
to his aid. Once Rose was downstairs, Rose was attacked by two or three men. Right
before the attack, defendant said nothing to Rose, seemed nervous, and stared to the right,
which was the direction from where the first blow came. From this, the jury could
reasonably infer that defendant knew where the perpetrators were, and all of them were
acting as part of a premeditated plan. During the attack, one of the men said, “You want
to rape my girl?” From this mention about rape, the jury could infer that the men were
acting at defendant’s request in retaliation for Rose allegedly raping defendant.
       This evidence was sufficient for the jury to conclude that defendant was not a
mere bystander, but rather, somebody who acted with knowledge of the crimes and an
intent to facilitate them.
                                            III
                     The Court Acted Within Its Discretion In Awarding
                        Restitution For Rose’s Cell Phone And Cash
       Defendant contends the court erred in ordering her to pay $215 in restitution for
the stolen cell phone and money because she was acquitted of the robbery. We disagree,
because defendant’s actions were a substantial factor in causing the loss of Rose’s phone
and money, and defendant’s relationship to Rose’s loss was not simply by way of the
robbery.




                                             8
         The statute governing victim restitution provides in pertinent part as follows: “in
every case in which a victim has suffered economic loss as a result of the defendant’s
conduct, the court shall require that the defendant make restitution to the victim . . . in an
amount established by court order, based on the amount of loss claimed by the
victim . . . .” (Pen. Code, § 1202.4, subd. (f).) Our court has applied the principle of
proximate cause in determining victim restitution (People v. Jones (2010) 187
Cal.App.4th 418, 425), and that principle turns on whether the actions of the defendant
were “a substantial factor in causing the victims’ damages” (People v. Holmberg (2011)
195 Cal.App.4th 1310, 1322). “[A] restitution order is not authorized where the
defendant’s only relationship to the victim’s loss is by way of a crime of which the
defendant was acquitted.” (People v. Percelle (2005) 126 Cal.App.4th 164, 180, italics
added.) Application of these principles leads to the conclusion that the court was within
its discretion to award the restitution. (People v. Giordano (2007) 42 Cal.4th 644, 663
[standard of review for restitution order].)
         Although defendant was acquitted of the robbery, she was instrumental in setting
up the beating. She provided the motive and lured Rose out of his apartment to be beaten
up by two or three men who were waiting for him. The taking of Rose’s cell phone and
cash by defendant’s cohorts made it more difficult for Rose to call for help or report the
beating and could also be seen as an effort to deprive police of evidence of the fact that
she called Rose so she could come to his apartment complex to retrieve her identification.
         Thus, defendant’s participation in the assault and battery were part and parcel of
the actions that led her cohorts to take Rose’s phone and cash, which occurred just as the
beating was coming to an end. As such, the court could reasonably conclude that the
phone and money were taken to make it easier for defendant and her cohorts to get away
with the assault and battery, and there was no error in awarding restitution for those
items.



                                               9
                                   DISPOSITION
       The judgment is affirmed.


                                            /s/
                                            Robie, J.


We concur:



/s/
Raye, P. J.



/s/
Renner, J.




                                       10
