P. v. Modrall

















Filed 1/23/13 P. v. Modrall CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.







IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. REBECCA RACHEL MODRALL, Defendant and Appellant.

E054205 (Super.Ct.No. INF067411) O P I N I O N

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Ronald L.
Johnson, Judge. (Retired judge of the
San Diego Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.

Dennis L. Cava, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and
Respondent.

I. INTRODUCTION

Defendant and appellant, Rebecca
Rachel Modrall, was charged with one count of extortion. (Pen. Code, § 518.)href="#_ftn1" name="_ftnref1" title="">^[1] At trial, the prosecution argued that the
jury could find defendant guilty based on any one of four possible acts of href="http://www.fearnotlaw.com/">extortion. The court instructed the jury with CALCRIM
No. 3500 as to the requirement of juror unanimity. The jury found defendant guilty. The court granted defendant probation on the
condition, among others, that she serve 180 days in custody and pay $28,200 in
restitution.

On appeal, defendant contends the
court prejudicially erred by giving the unanimity instruction. We reject this argument and affirm the
judgment.

II. FACTUAL
SUMMARY

On October 18 and 19, 2009, Elliott
Ashford’s wife was out of town. Around 11:30 p.m. on October 18, 2009, Ashford used the Craig’s List Web site
to find an advertisement for a woman who would come to his house to give him a
massage. He was aware that these types
of advertisements may refer to services other than a massage. Ashford called the telephone number in the
advertisement, spoke with defendant, and agreed upon a price for her services.

Two or three hours later, defendant
and another woman arrived at Ashford’s home.
Ashford gave defendant $300 or $500.
Ashford offered the women a drink and suggested they get into his
Jacuzzi. Defendant told him that would
cost more money. Ashford then drove to a
bank ATM, withdrew $700, and gave the money to defendant. He also wrote a check for $300 and gave it to
defendant’s companion.

After they returned, the three of
them got into the Jacuzzi. The women
were topless and Ashford touched their breasts.
When defendant mentioned her sister, Ashford asked if she could come
over, too. Defendant then called her
sister.

Ashford, who had been drinking, fell
asleep in the Jacuzzi. When he awoke,
defendant and her companion were gone and another woman was tapping his
shoulder. The woman told Ashford she
needed to be paid money if he wanted her to stay. Ashford said he did not have any more money
and told her to leave.

Later that morning or the next day,
defendant called Ashford and told him her sister had been in an accident, that
it was Ashford’s fault because he had requested she come to the house, and he
needed to pay $4,200 for the damage.
Ashford, afraid defendant might cause problems with his family, agreed
to pay.

He met defendant in a parking lot
and gave her $4,200 in cash. Defendant
then asked Ashford for his Rolex watch.
When he told her she could not have it, she suggested that he file an
insurance claim for the watch and recover $30,000. Ashford told her the watch was worth $8,000,
and he refused to give her the watch.
Defendant told him: “‘You better
think about it.’” She then produced one
of Ashford’s wife’s purses and said:
“‘Your wife might miss this, so you better reconsider on what you are
going to do.’” She told him if he did
not reconsider, she would “‘ruin [his] life.’”
Ashford understood defendant to mean that she would contact his wife and
tell her what happened between them.

A few hours later, defendant sent a
text message to Ashford, stating: “‘You
may want to reconsider, my dear. We
aren’t going anywhere. I am going to
visit with my attorney right now, and you could have till noon to decide, sweetie.’”

Ashford agreed to pay defendant an
additional $8,000 because he was afraid defendant would contact his wife, and
he wanted defendant to “keep quiet and go away.” Ashford withdrew the money from the bank. Defendant met him in a parking lot outside
the bank. Ashford gave her $8,000, and
she gave him the purse. Ashford had
defendant write out on the back of a bank deposit slip a promise that she would
not contact him anymore.

Four or five days later when Ashford
was at a golf tournament in Las Vegas,
he received a text message from defendant.
The message stated that defendant’s attorney wanted her to sue Ashford,
and that she wanted more money.

When Ashford got back to town three
or four days later, he agreed to meet defendant at a parking lot outside a
restaurant. When they met, she patted
him down to see if he was wearing a wire.
She said she wanted $25,000. The
two negotiated and agreed on $16,000.
Ashford went to the bank and gave defendant a cashier’s check in the amount
of $9,346 and $6,654 in cash. Defendant
produced a written contract in which they each promised not to contact the
other. They both signed the document.

Ashford’s wife found some of the
text messages from defendant on Ashford’s cell phone and called defendant’s
telephone number. (There was no evidence
as to whether Ashford’s wife got through to defendant or left any message.)

Defendant then called or texted
Ashford and told him he had broken their agreement. Ashford explained the situation to his wife
and told her that he had been giving defendant money.

Upon the advice of their attorney,
Ashford contacted the police. The police
told Ashford to maintain contact with defendant.

Ashford and defendant arranged for
another payment to defendant. They
agreed on the amount of $20,000. On November 9, 2009, Ashford got a
cashier’s check for $20,000 and met defendant outside his bank. After he gave defendant the check, police
arrested defendant.

At trial, the prosecution argued
that defendant committed four possible acts of extortion: (1) Ashford’s payment of $4,200 in response
to defendant’s demand that Ashford compensate her sister for her alleged
accident; (2) Ashford’s payment of $8,000 in response to defendant’s threat to
“ruin” Ashford’s life; (3) Ashford’s payment of $16,000 in response to
defendant’s demand for more money; and (4) the final payment of $20,000 after
the alleged breach of the no-contact agreement.

The court gave the jury the
following unanimity instruction based on CALCRIM No. 3500: “The defendant is charged with extortion in
Count 1. The People have presented
evidence of more than one act to prove that the defendant committed this
offense. You must not find the defendant
guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act she
committed.”href="#_ftn2" name="_ftnref2"
title="">^[2]

III. ANALYSIS

Defendant was convicted of
extortion. “Extortion is the obtaining
of property from another, with his consent, . . . induced by a wrongful
use of force or fear . . . .”
(§ 518.) Such force or fear
includes exposing, or imputing to, the victim any disgrace or crime, or
exposing any secret affecting him.
(§ 519.)

Here, defendant concedes that the
evidence is sufficient to establish the crime of extortion based on the $8,000
payment induced by the explicit threat to ruin Ashford’s life (and the implicit
threat of exposing the secret of their tryst to Ashford’s wife). She contends the evidence was insufficient to
convict defendant of extortion based on any of the other three payments relied
upon by the prosecution. Therefore, she
argues, the court should not have given the jury a unanimity instruction that
indicates the possibility of finding defendant guilty based on any payment other
than the $8,000 payment. Without
deciding whether the court erred in giving the unanimity instruction, we
conclude that defendant could not have been prejudiced by its use.

To convict an accused of a crime,
jurors must not only agree unanimously that the accused is guilty of the
charged crime, but that “the defendant is guilty of a specific crime.” (>People v. Russo (2001) 25 Cal.4th 1124,
1132.) Thus, “when the evidence suggests
more than one discrete crime, either the prosecution must elect among the
crimes or the court must require the jury to agree on the same criminal
act.” (Ibid.) In the latter
situation, the court imposes this requirement by giving an instruction
requiring unanimous agreement of the particular criminal act. (See, e.g., CALCRIM No. 3500.)

“In deciding whether to give the instruction,
the trial court must ask whether (1) there is a risk the jury may divide on two
discrete crimes and not agree on any particular crime, or (2) the evidence
merely presents the possibility the jury may divide, or be uncertain, as to the
exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second,
it should give the unanimity instruction.”
(People v. Russo, supra, 25
Cal.4th at p. 1135.) If the instruction
has no application to the facts of the case, it should not be given even if it
correctly states a correct legal principle.
(People v. Guiton (1993) 4
Cal.4th 1116, 1129 (Guiton).)

In her opening brief, defendant
explains how she was prejudiced by the unanimity instruction as follows: “Because the jury could only find [defendant]
guilty of extortion beyond a reasonable doubt with respect to the $8,000.00
Ashford gave her, if the jury did not find that payment was the result of
extortion, but instead found that one of the other three payments to which the
prosecutor alluded to in her argument to the jury constituted extortion,
[defendant’s] conviction was not by proof beyond a reasonable doubt of every
fact necessary to constitute extortion.”


If we assume, as defendant contends,
that there was substantial evidence of only one extorted payment—the $8,000
payment—defendant’s conditional assertion is correct: If the jury did not find defendant guilty of
extortion based on the $8,000 payment and the evidence was insufficient to
support a verdict based on the other payments, the conviction would not be
supported by substantial evidence and could not stand. This point, however, does not resolve the
matter before us. The problem here is
that the record does not indicate which factual basis the jury relied upon;
there is no way of knowing that the jury found defendant guilty of extortion
based on a payment or payments other than the $8,000 payment. The question, therefore, is whether a
conviction that is adequately supported under one factual scenario presented to
the jury, but insufficiently supported by evidence of alternative factual
scenarios presented to the jury, must be reversed when the record does not
reveal which scenario the jury relied upon.
This question was addressed in
Guiton.

In Guiton, the defendant was found guilty of selling or transporting
cocaine in violation of Health and Safety Code section 11352. (Guiton,
supra, 4 Cal.4th at p. 1120.)
Although there was some evidence that he sold cocaine, there was not
enough evidence to support the conviction on that basis; however, there was
sufficient evidence that he transported cocaine. (Id.
at pp. 1120-1121, 1131.) The record did
not reveal the basis for the jury’s verdict.
The Supreme Court upheld the conviction, stating: “If the inadequacy of proof is purely
factual, of a kind the jury is fully equipped to detect, reversal is not
required whenever a valid ground for the verdict remains, absent an affirmative
indication in the record that the verdict actually did rest on the inadequate
ground.” (Id. at p. 1129.) The court
further stated that “the appellate court should affirm the judgment unless a
review of the entire record affirmatively demonstrates a reasonable probability
that the jury in fact found the defendant guilty solely on the unsupported
theory.” (Id. at p. 1130.)

Here, the alleged inadequacy of
proof—that the payments other than the $8,000 payment were induced by a
wrongful use of force or fear—is purely factual and the kind the jury is fully
equipped to detect. Even if the evidence
is insufficient to support a verdict based solely on one or more of the other
three payments, defendant concedes that a “valid ground for the verdict remains.” (See Guiton,
supra, 4 Cal.4th at p. 1129.) There
is nothing in our record to suggest that the jury found defendant guilty based
solely on payments other than the $8,000 payment. Therefore, even if evidence of the other
payments is factually inadequate to support the verdict, the conviction will
not be reversed. (See >id. at p. 1130.)

In her reply brief, defendant states
her prejudice argument this way:
“Because the unanimity instruction was given, the jury was afforded the
opportunity to convict [defendant] of extortion on the basis of any of the
. . . four payments, if it unanimously agreed as to what payment
constituted extortion or if it unanimously agreed that [defendant] committed
four separate acts of extortion.” This
argument, too, is without merit.

To the extent the jury was afforded
the opportunity to convict defendant based on payments other than the $8,000
payment, that opportunity had nothing to do with the unanimity
instruction. The facts surrounding the
other acts were admitted into evidence and the prosecutor argued (without
objection) that the jury could find that any of the four payments were
extorted. The possibility defendant is
concerned about is not, as she argues, a possibility that existed >because of the unanimity instruction.

For example, with or without the
unanimity instruction, the jury might have concluded that the $4,200 payment
was the act that completed the extortion.
The unanimity instruction did not, as defendant contends, “afford[ the
jurors] the opportunity to convict” defendant of extortion based on the $4,200
payment; they had that opportunity even without the instruction. The only effect the unanimity instruction
could have had on the verdict was that it ensured that all jurors agreed upon
at least one act that constituted extortion.
This could not, under any harmless error standard, have prejudiced
defendant.



IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



KING

J.





We concur:



RAMIREZ

P.
J.



RICHLI

J.