P. v. Spencer
Filed 8/14/12 P. v. Spencer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
SANDRA ESPINOZA SPENCER et al.,
Defendants and
Appellants.
2d Crim. No.
B230684
(Super. Ct. No.
2008002721)
(Ventura County)
A jury found Sandra
Espinoza Spencer guilty of solicitation of murder (Pen. Code, § 653f,
subd. (b)) and conspiring to commit murder
(§ 182, subd. (a)(1)).
name="_ftnref1" title="">[1] The jury also found Spencer's codefendants
Gonzalo C. Meza, Jr., and Benny Figueroa guilty of conspiring to commit
murder. Defendants received
indeterminate prison terms of 25 years to life.
Defendants contend the judgments are not supported by substantial
evidence, the trial court erred in admitting evidence of uncharged crimes and
misconduct. We affirm.
FACTS
Anthony Navarro
fraudulently obtained money through a real estate business he owned. Navarro operated the business with his wife,
Sandra Espinoza Spencer. When Navarro
was arrested for fraud in October 2003, Ventura County Deputy District
Attorney, Marc Leventhal, was assigned to his case.
Initially, Navarro was
released from custody while Leventhal investigated the claims against him. In June 2004, Leventhal had charges filed
against Navarro, and a warrant issued for his arrest. The scheduled bail for the charged offenses
was $60,000. Leventhal convinced the
trial court to set bail at $200,000.
Eventually, Leventhal learned Navarro was in custody in Riverside County
on a misdemeanor charge of possessing false identification documents.
Leventhal appeared at
the Riverside bail hearing and cross-examined Spencer on the source of the
funds that would be used to post bail there.
Leventhal was concerned the funds were derived from
Navarro's attorney,
Ruben Sanchez, was present at the bail hearing.
After the hearing, Sanchez offered Leventhal two cashier's checks. Sanchez represented that the checks were unrelated
to criminal activity. Leventhal refused
to accept the checks.
Navarro pled guilty to
the Riverside charge, and was transported into custody in Ventura County. While Navarro remained in custody, Leventhal,
through a series of motions, succeeded in having Navarro's bail increased from
$200,000 to $500,000, eventually to $1 million.
The increases were based on Leventhal's claim that Navarro represented
an extreme flight risk, and that the money used to post bail was derived from
criminal activity.
Spencer was angry with
Leventhal for arguing that her husband's bail should be denied. She told a friend, Victor Brown, that
Leventhal was "out to get them, that it was personal" and that
"the bastard's going to get what he deserves." She said she wanted to kill Leventhal because
he was pursuing a personal vendetta against her and her family.
Brown owned a security
company that employed Gonzalo Meza and Pablo Cruz. Brown, Meza and Cruz were staying with
Spencer at her Ventura residence. Benny
Figueroa was also staying with Spencer.
Brown testified that in
October or November 2004, he attended a meeting in Spencer's home with Meza,
Cruz, Figueroa and Spencer. Spencer said
she wanted Leventhal killed. Meza replied
it would take $50,000 to $75,000 to get rid of Leventhal. Meza said Figueroa was his gunman. Figueroa replied, "[T]hat's why I'm
here." Figueroa lifted his jacket
to reveal a handgun.
Cruz testified he
attended a meeting at Spencer's house when she offered $50,000 to kill
Leventhal. Meza said, "It's
good." Figueroa said, "I'm
going to do it."
Cruz testified that he
attended a second meeting at Spencer's house.
Spencer, Brown and Meza were present.
At the meeting, Spencer offered $50,000 to the person who shot Leventhal. Meza nodded, yes. Spencer said she wanted Leventhal dead and
with Leventhal dead it would be easier to get Navarro out of jail.
Some days later,
Spencer, Brown, Meza, Cruz and Figueroa met again. Meza presented a plan to follow Leventhal as
he drove from work, pull up beside him in a car and shoot him. Meza said he would drive the shooter. Both Cruz and Figueroa volunteered to be the
shooter. Meza chose Figueroa.
Spencer and Meza asked
Cruz to take pictures of Leventhal with his cell phone so they would not shoot
the wrong person. Cruz took pictures of
Leventhal at one of Navarro's bail hearings, but the pictures were too blurry
to be of any use.
Cruz testified that he,
Meza and Figueroa all carried handguns, but they believed they needed a bigger
weapon to shoot Leventhal. Cruz obtained
an AK-47 assault rifle and ammunition from someone in Palm Springs. Cruz gave the rifle to Meza. A few days later, Meza tested the rifle in a
grassy area outside Spencer's house.
Meza said they would use it to shoot Leventhal.
Mark McGowan worked for
Sanchez in connection with Navarro's bail hearings. Sanchez brought McGowan to Spencer's house on
two or three occasions. On one occasion,
Sanchez complained to Meza about the difficulty he was having obtaining bail
for Navarro because of Leventhal's efforts.
Meza said that if Leventhal would not reduce bail or give Navarro a
deal, "[T]hen we hit him. Make a
move on him." Sanchez was confused
about what Meza meant. Meza clarified,
"Kill him." Sanchez said,
"[G]o ahead and do it." Meza
said Spencer would pay for it.
Around September 2004,
Brown saw Spencer using her home computer trying to locate people. Spencer told Brown she entered Leventhal's
name in the computer. For a period of
months, she could not locate him. When
she finally found him, she became excited.
After Spencer found information about Leventhal on her computer, she had
Brown drive her by Leventhal's office.
In the meantime, Spencer
was in contact with Navarro by telephone.
Navarro expressed his desperation to get out of jail. Spencer told Navarro that she had the
money. She had $50,000 in her
hands. She said she "robbed a bank."
Spencer was not
joking. Brown testified that in January
2005, Brown, Spencer, Meza and Figueroa discussed their intent to rob a Wells
Fargo Bank. Brown, Meza and Figueroa
robbed the bank on January 6, 2005. They
gave Spencer $40,000 from the proceeds.
In March 2006, the FBI
conducted a search of Spencer's residence as part of a bank robbery
investigation. They found a printout of
the State Bar web page for Leventhal dated February 27, 2005. The printout contained handwritten entries
that were consistent with Spencer's handwriting.
Another document listed
Leventhal's personal information including home address and telephone number,
Social Security number and date of birth.
A handwritten note contained the words "'Mark Leventhal . . . 'will
get what he deserves.'"
An investigator for the
district attorney's office searched the hard drive on Spencer's computer. The only username on the hard drive was
Spencer's first name, Sandra. A file
containing Leventhal's personal information was created on September 24, 2005. On January 13 and 14, 2005, the computer was
used to conduct web searches for Leventhal's name. The computer was also used to search for
Leventhal's name on the State Bar's web site and pay-for-use web site to search
for personal or business records.
Other
Uncharged Misconduct
Bank Robberies
prosecution introduced evidence of other bank robberies. On December 20, 2004, Figueroa, Cruz, Brown
and Meza robbed a Wells Fargo Bank; on January 22, 2004, Figueroa, Cruz, Brown
and others robbed a Downey Savings; on February 7, 2005, Figueroa and others
robbed a Wells Fargo Bank; and on March 16, 2005, Figueroa and another man
robbed a Wells Fargo Bank. Figueroa was
arrested as he fled. Spencer received a
total of approximately $56,000 from all of the robberies.
Jewelry and Liquor Store Robberies
Cruz testified that in September
2004, he and Figueroa robbed a jewelry store.
Meza helped plan the robbery.
Meza did not go to the store, but he loaned Figueroa his gun. On cross-examination Cruz admitted that
before the December 2004 bank robbery he also participated with Meza and
Figueroa in four liquor store robberies.
(c) Morales Incident
Brown helped bail out
Jamie Morales. In return, Morales was
supposed to help obtain bail for Navarro by having his father pledge some
property. Instead, Morales disappeared. Spencer used her computer to obtain personal
information about Morales. Eventually,
Morales called Brown and told him where he was.
Brown, Cruz, Meza and Figueroa went to find him. They beat Morales, and Figueroa threatened to
kill him. Brown objected to killing
Morales because he had put up his bail money.
Instead, Brown contacted the bail bondsman and turned Morales over to
him.
Spencer's Sexual Relationships
Brown testified that he
had a sexual relationship with Spencer.
Brown also said Meza claimed to have a sexual relationship with
her. Cruz testified that Meza had a
sexual relationship with Spencer, and that he saw Spencer and Sanchez
"making out" in the Jacuzzi.
Navarro's Crimes
Leventhal testified
Navarro pled guilty to 24 felonies composed of multiple charges of grand theft,
attempted grand theft, identity theft, loan fraud, money laundering, check
fraud, forgery and filing forged instruments.
He was sentenced to 14 years, 8 months.
Defense
None of the defendants
testified on his or her own behalf.
An investigator with the
district attorney's office testified he interviewed Spencer. Spencer told him she wrote, "He'll get
what he deserves," during a telephone conversation she was having with
another person. Jeanine Kloeris
testified she said, "He'll get what he deserves," in reference to
Navarro. She once dated Navarro, and did
not like him.
Sanchez denied he ever
spoke to Meza about killing Leventhal; nor did he ever tell anyone it would be
a good idea to kill him.
DISCUSSION
I
Solicitation
of Murder
Spencer contends there
is no evidence she requested another person to commit murder. Thus she believes her conviction for
solicitation of murder must be reversed.
In reviewing the
sufficiency of the evidence, we view the evidence in a light most favorable to
the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the
judgment as having been rejected by the trier of fact for lack of sufficient
verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the
evidence or judge the credibility of witnesses.
(People v. Stewart (2000) 77
Cal.App.4th 785, 790.) We must affirm if
we determine that any rational trier of fact could find the elements of the
crime or enhancement beyond a reasonable doubt.
(People v. Johnson,
Solicitation consists of
asking another to commit one of the crimes specified in section 653f with the
intent that the crime be committed. (
25, 33.) Intent may be inferred from the
circumstances. (Ibid.) The offense is
complete once the request is made. (
Solicitation to commit
murder requires the testimony of two witnesses or one witness and corroborating
circumstances. (§ 653f, subd.
(f).) The corroboration may be slight
and, standing by itself entitled to little consideration. (People
v. Negra (1929) 208 Cal. 64, 69.)
Cruz testified he was
present at meetings where Spencer offered $50,000 to kill Leventhal. But Spencer argues Cruz's testimony is
suspect. He testified that the
prosecutor did not offer him anything for his testimony. Nevertheless, he was not prosecuted for a
number of crimes, the commission of which he admitted. But that goes to the weight and credibility
of the evidence. We have no power on
appeal to reweigh the evidence or judge the credibility of all witnesses. (People
v. Stewart, supra, 77 Cal.App.4th
at p. 790.)
Spencer also argues that
Cruz was an unindicted coconspirator.
She claims his testimony was uncorroborated. The trial court instructed the jury that Cruz
as a matter of law was an accomplice whose testimony must be independently
corroborated.
In any event, Brown
testified he was present at a meeting between Spencer, Meza and Figueroa in
October or November 2004. Spencer said
she wanted Leventhal killed. Meza said
it would cost between $50,000 and $75,0000.
Meza said Figueroa was the gunman.
Figueroa replied, "[T]hat's why I'm here."
The trial court
instructed the jury it must decide whether Brown was an accomplice. (§ 1111.)
matter. Where the record is silent we
presume the jury made all findings necessary to support the judgment. (See People
v. Francis (2002) 98 Cal.App.4th 873, 878.)
We must assume the jury found Brown was not a coconspirator.
But even if Brown's
testimony were not sufficient corroboration, McGowan's testimony is more than
sufficient. McGowan testified he
overheard a conversation between Meza and Sanchez. Meza told Sanchez that if Leventhal was
unwilling to reduce Navarro's bail or give him a deal, Meza would kill
Leventhal. McGowan testified Meza said
that Spencer would pay for it. The material
found in a search of Spencer's home also corroborated Cruz's testimony.
Spencer argues there is
no evidence she intended that the crime of murder be committed. But Brown and Cruz reported that Spencer said
she wanted to kill Leventhal or that she wanted him killed, and she offered to
pay $50,000 for the murder. The jury was
entitled to take Spencer at her word.
II
Conspiracy
to Commit Murder
Spencer, Meza and
Figueroa contend their convictions for conspiracy to commit murder are not
supported by substantial evidence. Their
arguments are substantially the same.
The crime of conspiracy
is defined as two or more persons conspiring to commit any crime. (§ 182, subd. (a)(1).) There must be proof of an overt act in
furtherance of the conspiracy by one or more of the parties to such an
agreement. (§ 184.) The crime requires the specific intent to
conspire as well as the specific intent to commit the offense which is the
object of the conspiracy. (
600.)
The testimony of a
coconspirator must be corroborated.
(§ 1111.) The corroborating
evidence is sufficient if it tends to connect the defendant with the commission
of the crime in such a way as to reasonably satisfy the finder of fact that the
coconspirator is telling the truth. (
1, 26.) The corroboration is sufficient
even though it is slight and, when standing by itself, entitled to little
consideration. (Ibid.)
Here the testimony of
Brown and Cruz is that Spencer offered $50,000 to kill Leventhal. Meza agreed to be the driver and Figueroa agreed
to be the shooter. That evidence was
supported by McGowan's testimony and the evidence discovered in Spencer's home.
In addition, the
prosecution alleged and presented evidence of six overt acts: (1) Spencer obtained Leventhal's personal
information through computer research; (2) Spencer, Meza and Figueroa attended
meetings in Spencer's home to plan Leventhal's murder; (3) Cruz used his cell
phone to take pictures of Leventhal; (4) Brown drove Spencer to
Leventhal's office to confirm Leventhal's whereabouts; (5) Meza obtained
an AK-47 assault rifle; and (6) Meza tested the assault rifle.
Spencer's argument that
there is no substantial evidence of an overt act, amounts to nothing more than
a view of the evidence most favorable to her.
An example will suffice. In
attacking the first overt act, Spencer points to evidence that she used her
computer to obtain personal information on Leventhal on September 24,
2005. By that time, Brown, Cruz,
Figueroa and Meza had already been arrested and Navarro sentenced. Spencer ignores evidence of other computer
searches. Brown testified he saw Spencer
searching under Leventhal's name around September 2004. Spencer's search under Leventhal's name
lasted for months. On January 13 and 14,
2005, Spencer's computer was used to search under Leventhal's name. Those incidents were prior to anyone's arrest
and Navarro's plea of guilty.
Spencer, Meza and
Figueroa argue that the second overt act, meetings at Spencer's house to plan
the murder, is invalid as a matter of law.
Their argument is based on the theory that the meetings themselves
constitute the conspiracy. They cite
section 184 requiring the overt act be some act beside the agreement itself.
But the court rejected
that argument in People v. Von Villas (1992)
11 Cal.App.4th 175. There the court
determined that the agreement itself is not a tangible occurrence. (Id. at
p. 244.) The court concluded that the
trial court "did not err by allowing the prosecution to allege discussions
and arrangements between the coconspirators as overt acts of a
conspiracy." (Id. at p. 245.)
Spencer argues that
evidence of the third overt act, Cruz took a cell phone picture of Leventhal,
and the sixth overt act, Meza tested an AK-47, were based on Cruz's
require corroboration in every detail. (
876.) It only requires that the
testimony of an accomplice be corroborated by other evidence that tends to
connect the defendant with the commission of the offense. (Ibid.) Cruz's testimony about overt acts does not
require corroboration.
Spencer argues the
fourth overt act, having Brown drive her past Leventhal's office, was not in furtherance
of the conspiracy. But the plot was to
shoot Leventhal as he drove his car. The
most obvious place for the conspirators to locate Leventhal would be as he
drove between his office and home.
Viewing Leventhal's office and the surrounding area would be useful for
that purpose. In fact, Spencer suggests
no other reason for driving by Leventhal's office.
Spencer argues there is
no evidence to support the fifth overt act, that Meza obtained the AK-47
assault rifle to be used in the murder plot. She argues Cruz testified he obtained the
AK-47. It is true Cruz obtained the
rifle from someone in Palm Springs. But
Meza obtained the rifle from Cruz.
Proof of only one overt
act is required. (People v. Scott (1964) 224 Cal.App.2d 146, 151.) Here the People alleged and proved six.
III
Spencer, Meza and
Figueroa contend the trial court erred in admitting evidence of other crimes
and Spencer's sexual relationships.
Evidence of other crimes
is not admissible merely to show criminal propensity. (Evid. Code, § 1101, subd. (a).) But the evidence may be admitted to prove a
material fact such as motive or intent.
(Id. subd. (b).)
The trial court
instructed the jury accordingly:
"If you decide that the defendants committed the uncharged
offenses, you may but are not required to consider that evidence for the
limited purpose of deciding whether or not the defendants acted with the intent
to commit murder in this case, or that the defendants had a motive to commit
the offenses alleged in this case, or that the defendants had a plan or scheme
to commit the offenses alleged in this case.
[¶] Do not consider this evidence
for any other purpose except for the limited purposes set forth above. [¶] Do
not conclude from this evidence that the defendants have a bad character, or
are disposed to commit crime."
(CALCRIM No. 375.)
Here there is evidence
of a number of robberies committed by members of the conspiracy, including
robberies of banks, liquor stores and a jewelry store. There is also evidence that Spencer pled
guilty to a money laundering charge as a result of money she received from the
January 6, 2005, bank robbery.
The trial court found
that the robberies were relevant to show motive and common scheme. Spencer was angry with Leventhal for increasing
Navarro's bail because she had no money to post bail. The robberies and plotting to kill Leventhal
were all part of the same scheme to free Navarro. The robberies raised money for bail and to
pay for the murder, and the coconspirators believed that the bail amount would
be reduced if Leventhal were off the case.
Thus the evidence was admitted to prove a material fact, not criminal
propensity. Evidence of uncharged crimes
may be admitted to show the existence of motive even where the uncharged crime does
not supply the motive. (
1335, 1381.)
Moreover, the evidence
was relevant to prove intent. At trial,
the defendants claimed the alleged plot to kill Leventhal amounted to nothing
more than talk; they never intended to kill him. Evidence that the defendants were willing to
resort to robberies in order to free Navarro shows they were serious, and that
Spencer had a source of funds to pay for the murder. The evidence has a tendency in reason to
prove the defendants had the intent to kill Leventhal.
Similarly, the Morales
incident shows the defendants had the intent to kill. When Morales disappeared and reneged on his
commitment to help bail out Navarro, Meza and Figueroa beat Morales and
Figueroa threatened to kill him.
Nor did the trial court
abuse its discretion under Evidence Code section 352. That section authorizes the trial court to
exclude evidence where its probative value is substantially outweighed by the
probability its admission will create a substantial danger of undue
prejudice. In the context of Evidence
Code section 352 "undue prejudice" applies to evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues.
(People v. Felix (1994) 23
Cal.App.4th 1385, 1396.) Certainly,
there is a danger of undue prejudice any time evidence of uncharged crimes is
admitted. But here the uncharged crimes
evidence was highly relevant to show motive, common scheme and intent. Under the circumstances, we cannot conclude
that the trial court abused its discretion under Evidence Code
section 352.
In any event, if the
trial court erred in admitting the evidence the error was harmless. Neither the United States Supreme Court nor
the California Supreme Court has held the erroneous admission of other crimes
evidence implicates a constitutional prohibition. There may well be circumstances under which
the admission of other crimes evidence is so fundamentally unfair that it
violates due process. This is not one of
those instances. Accordingly, we apply
the harmless error standard stated in People
v. Watson (1956) 46 Cal.2d 818, 836.)
The trial court properly
instructed the jury not to conclude from the evidence of uncharged offenses that
the defendants have a bad character, or disposed to commit crime. We presume the jury followed the
instruction. (People v. Jones, supra,
51 Cal.4th at p. 371.)
Moreover, evidence of
the defendants' guilt of the charged offenses was overwhelming. Cruz's testimony was corroborated by Brown's
testimony. Their testimony was further
corroborated by McGowan's testimony and the evidence found in Spencer's
home. There is no reasonable probability
the defendants would have obtained a more favorable result had the other crimes
evidence not been admitted. (
Evidence of Navarro's
crimes was admitted to explain why Leventhal argued for a high bail. That was the motive for the plot to kill
Leventhal. Even if the evidence was
irrelevant, any error in its admission was harmless. First, the evidence was of Navarro's crimes,
not those of any of the defendants.
Second, as we have explained, the evidence against the defendants was
overwhelming.
Spencer argues evidence
that she had sexual relations with Brown, Meza and Sanchez was irrelevant. The evidence of a sexual relationship with
Meza was relevant to show why Meza would participate in the conspiracy. Even assuming Spencer's sexual relationship
with Brown and Sanchez is irrelevant, any error is harmless. Not only is the evidence of Spencer's guilt
overwhelming, but no reasonable juror would convict her of serious crimes
because she acted promiscuously.
IV
Figueroa, Spencer and
Meza contend the prosecutor committed misconduct. The contention is based on the prosecutor's
statements during closing and rebuttal arguments. The prosecutor stated the bank robberies show
to what lengths the defendants would go for Navarro's bail and that the Morales
incident shows the intent to kill Leventhal.
The defendants claim the statements are tantamount to arguing bad
character and propensity to commit crimes.
But the defendants
raised no objection to the statements.
To preserve a claim of misconduct for appeal, the defendant must object
and request an admonition. (
1328.) Only if an admonition would not
have cured the harm is the claim of misconduct preserved for review. (Ibid.)
Here not only did the
defendants fail to object, but the trial court expressly instructed the jury it
could not consider uncharged crimes evidence to conclude that the defendants
have a bad character or are disposed to commit crime. The court further instructed the jury it
could consider such evidence only to show intent, motive or scheme to commit
the offenses.
Here the prosecutor
argued the uncharged crimes showed motive and intent. That was proper argument. There was no misconduct.
The judgments are
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Charles
W. Campbell, Judge
title="">*
Superior
Court County of Ventura
______________________________
Marilee Marshall &
Associates, Inc., and Marilee Marshall for Defendant and Appellant Sandra
Espinoza Spencer.
Marilyn G. Burkhardt,
under appointment by the Court of Appeal, for Defendant and Appellant Gonzalo
C. Meza.
Susan Pochter Stone,
under appointment by the Court of Appeal, for Defendant and Appellant Benny
Figueroa.
name="_ftn1" title=""> [1]
All statutory
references are to the Penal Code unless stated otherwise.
name="_ftn2" title=""> [2] The definition of an
accomplice necessarily includes a coconspirator. (Ibid.)
