P. v. Mordaunt
Filed 2/21/13 P. v. Mordaunt 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NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
THERESA
CAMILLE MORDAUNT,
Defendant and Appellant.
E055279
(Super.Ct.No. FVA1100532)
OPINION
APPEAL from the Superior
Court
of
San
Bernardino County.
Steven A. Mapes, Judge. Affirmed.
John Derrick, 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,
Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Theresa Camille Mordaunt appeals
from a judgment of conviction of burglary
and attempted robbery, both in the first degree. (Pen. Code, §§ 664, 211, 459.)
insufficient to support these convictions.
STATEMENT
OF FACTS
Defendant lent money to the victim and her husband, who
physically gave her their truck as collateral.
At some point, while in defendant’s possession, the truck was either
damaged or otherwise became inoperative, as it was impounded in Newport
Beach and never returned to the victim
or her husband.
name="_ftnref3" title="">[3]
Defendant sued in small claims court to recover the
amount she claimed was due her, but the matter was dismissed after
mediation. (The circumstances of the
dismissal are not clear.) The matter was
dismissed in December 2010.
On March
30, 2011, the victim was in her home when she heard
a bumping sound at the screen door. The
victim opened the door a few inches and saw defendant. She tried to close the door, but defendant
kicked through the screen door and then kicked the actual door as well. The victim backed up, losing her
balance. Defendant was yelling, “‘I want
my money. Give me my money’†and began
swinging her arms and knocking things over.
The victim told her that she was going to call the police, and defendant
picked up a game controller in the shape of a guitar and began swinging it at
the victim, striking her on the arms.
The victim estimated that the controller weighed between three and five
pounds.
In the meantime, the victim managed to call 911
ripping the telephone wires out of the wall.
After a few moments more, defendant left. The victim’s purse was on a table during the
incident.
The investigating officer testified that when defendant
was apprehended and identified by the victim later in the same evening (but
according to the victim “several hours laterâ€), defendant appeared to be under
the influence of some substance; she was agitated, rigid, and her speech was
very rapid.
Defendant argues that there was no substantial evidence
either that she actually tried to take money (or anything else) from the
victim’s person or immediate presence or that she had the specific intent to do
so. Defendant suggests that her crime
(if any) was extortion, not robbery.
Defendant then extrapolates that the burglary conviction must also fall
because the jury might have based it upon the “unproven†attempted robbery.
DISCUSSION
First, defendant properly concedes that even if she
believed that the victim owed her money, it is not a defense to a charge of
robbery if the elements of that crime are established. (People
v. Tufunga (1999) 21 Cal.4th 935, 955-956.)
We therefore proceed to the elements of a criminal attempt and the
governing standard of review.
With respect to the substantial evidence argument, in
determining whether the conviction should be upheld, our task is to determine
whether any reasonable trier of fact
could have decided that defendant intended to rob the victim. (Jackson
v. Virginia (1979) 443 U.S. 307, 318-319; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552.) In other words, the conviction must be based
upon substantial evidence—evidence that is reasonable, credible, and of solid
value. (People v. Cravens (2012) 53 Cal.4th 500, 508; People v. Johnson (1980) 26 Cal.3d 557, 578.) The fact that the evidence might also
reasonably lead to a contrary, or different, conclusion does not require
reversal of the judgment. (
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission.†(§ 21a.)
Contrary to defendant’s implicit position, it is not necessary that a
defendant actually commit an element of the underlying crime. So long as the specific intent has been
formed and the defendant commits an act that causes sufficient risk of harm, it
is immaterial that he or she could not complete the intended offense. (People
v. Medina (2007) 41 Cal.4th 685, 694.)
A conviction for attempt is proper as long as the defendant, in addition
to possessing the required specific intent, commits an act that goes beyond
mere preparation and is a direct step towards the accomplishment of the
criminal goal. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.)
These principles readily demonstrate the lack of merit in
defendant’s claim.
name="_ftnref5" title="">[5] With respect to specific intent, although as
defendant notes she did not ask, “‘Where is the money?’†she
use as a weapon (the game controller “guitarâ€) and wielded it against both
household objects and the victim.
Although defendant suggests that any intent to rob was formed after her
entry, this theory is inconsistent with the forcible, even violent manner in
which she entered, breaking the door, and pushing the victim backwards. Such an act could only with difficulty be
reconciled with the supposition that defendant just wanted to talk about the
debt. The jury acted well within its
province in concluding that defendant broke into the home with the intent to
take money from the victim by force.
Defendant also obviously took far more than a mere
preparatory step in the accomplishment of the crime when she forced her way
into the home, demanded money, and assaulted the victim. (See People
v. Birden (1986) 179 Cal.App.3d 1020, 1026 [forcible entry alone is
sufficient act to constitute attempt where intent to rob is admitted].) It is immaterial that she did not actually
obtain money; that is one of the differences between an attempt and the
completed crime. Nor does the fact that
she did not take the victim’s purse from wherever it lay prove anything helpful
to defendant. The crime of attempted
robbery does not require that the defendant actually take or otherwise obtain
possession of any property. (
29.) And even assuming arguendo that
voluntary abandonment may in some circumstances prevent a conviction for
attempt (see generally 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Elements, § 71, pp. 363-364), in this case, the jury could reasonably have
concluded that defendant only left the victim’s home and gave up her attempt to
obtain money because the victim had secured herself in the bathroom and called
for police assistance. (See
Cal.App.2d 25, 36 [abandonment no defense where prompted by fear of discovery
or arrival of police]; cf. People v.
Staples (1970) 6 Cal.App.3d 61, 69 [reason for abandonment immaterial once
the acts of the defendant have reached the point where they can be legally
classified as an attempt].)
As for defendant’s efforts to persuade that she should
have been charged with extortion rather than robbery, they are unpersuasive. Although extortion may also involve the use
of force or fear, it is distinguished from robbery in that the intent is to
induce the victim to consent to part
with the money or other property. (§
518; People v. Sales (2004) 116
Cal.App.4th 741, 748.) It has also been
said that the “force or fear†that supports a robbery conviction involves an
immediate threat, while extortion is commonly based on a threat of future
harm. (See People v. Torres (1995) 33 Cal.App.4th 37, 52, fn. 7.) Not only was defendant’s use of force and
violence against the victim immediate and simultaneous with the demand for
money, it was also inconsistent with an intent to persuade the victim to
peaceably consent.
As the evidence was amply sufficient to establish that
defendant had the specific intent to rob the victim when she forced her way
into the home, the burglary conviction is similarly invulnerable.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting
P.J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Defendant was also convicted of vandalism and
cutting a utility line. (§§ 594, subd.
(b)(2)(A), 591.) She does not challenge these
convictions.
