P. v. Alonzo
Filed 2/5/13 P. v. Alonzo CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DOREEN BANKE ALONZO,
Defendant and Appellant.
D059149
(Super. Ct.
No. JCF24885)
APPEAL from
a judgment of the Superior Court
of
County, Matias R. Contreras, Judge. Affirmed as modified, with directions.
A jury
convicted Doreen Banke Alonzo of the following five crimes committed against
69-year-old Andres Spiegl at his tow truck business/residence in Salton
City: (1) kidnapping to commit
(undesignated statutory references will be to the Penal Code unless otherwise
specified); (2) first degree robbery (count 2:
§ 211); (3) elder abuse with infliction of great bodily injury
(count 3: § 368, subd. (b)(1),
hereafter § 368(b)(1), (2)); (4) first degree burglary (count 4: § 459); and (5) conspiracy to commit
first degree robbery and first degree burglary (§§ 182, subd. (a)(1), 211,
459).
conviction, the jury found true an enhancement allegation that the victim was
69 years old and suffered great bodily injury (§§ 368, subd. (b)(2) &
12022.7). With respect to the count 5
conspiracy conviction, the jury found that at least one member of the
conspiracy
committed at least one of the following overt acts: Alonzo called a tow truck driver; the driver,
Spiegl, was tied up; and money and property were taken from Spiegl.
At the
denied Alonzo's motion for new trial, which was based on her claim (discussed
more fully, post) that the jury had
committed misconduct during deliberations.
The court found that any jury misconduct was harmless. The court then sentenced her to an aggregate
prison term of life without the possibility of parole plus eight years.
Contentions
Alonzo
appeals, contending (1) the court erred and violated her rights under the
Fifth, Sixth, and Fourteenth Amendments to the
motion for new trial; (2) to the extent reversal is not required based on the
jury misconduct claim raised in her new trial motion, the court erred by denying
her petition for release of juror contact information, thereby preventing her
from developing a full record of the jury misconduct; (3) the court
prejudicially erred by admitting (a) evidence that her boyfriend, Robert Gaeta,
attempted to covertly communicate with her when she was in jail, (b) evidence
that Gaeta was arrested there, and (c) Investigator Romero's opinion testimony
that Alonzo and Gaeta were attempting to fabricate an alibi; (4) there is insufficient evidence to support
her count 1 conviction of kidnapping for robbery because the movement of Spiegl
within his own tow yard did not increase his risk of harm; (5) her count 3
conviction of elder abuse must be reversed because the court erroneously
instructed the jury it could convict her on an incorrect legal theory; and (6)
the sentences imposed for her count 3 conviction of elder abuse and her count 4
conviction of first degree burglary must be stayed under section 654.
We conclude
the judgment must be modified to stay under section 654 the execution of the
four-year prison sentence the court imposed for Alonzo's count 4 conviction of
first degree burglary. As modified, the
judgment is affirmed with directions.
FACTUAL
BACKGROUND
A.
1.
Company
Spiegl, who
owns and runs the Salton Sea Tow Company on a chain-link fenced 1.25-acre
parcel of land where he also resides in Salton City, was born in October 1940,
making him 69 years of age on January 26, 2010,
when he was attacked and robbed in this case.
Another chain-link fence runs across the middle of the property and
encloses Spiegl's office, garage, and residence.
At 9:42 p.m., a woman called Spiegl, told him her
car had broken down and requested a tow.
Expecting a short tow, Spiegl left the tow yard gate open and drove to
that location in the direction of the Red Earth Casino, but did not find a
disabled vehicle. As the caller's phone
number was blocked, Spiegl was unable to call her back. Evidence presented at trial established that
the phone call was eventually traced to the cell phone of Alonzo's codefendant,
Vita (see fn. 2, ante).
As Spiegl
was driving back to his tow yard, he passed an oncoming vehicle which had its
high beams on. Blinded by the light,
Spiegl was unable to identify what type of vehicle it was or who was
inside. As it was unusual to have
another vehicle in the area that late at night, Spiegl turned around and
followed the vehicle to the casino.
After losing sight of the vehicle, he eventually encountered a white
pickup with a cover on the back. The
pickup did not stop at one stop sign, but stopped at another. Spiegl stopped behind the pickup and wrote
down the license plate number. Wanting
to avoid trouble, Spiegl turned around and drove back home.
When he
arrived at the tow yard, Spiegl used the searchlight on the roof of his tow
truck to look around the yard. When he
did not notice anything unusual, he got out, locked the gate, and walked toward
his residence. It was raining heavily
and it was cold. Two men suddenly
attacked Spiegl. One shone a light in
Spiegl's face, which blinded him, and told him, "Don't move." One of the men hit Spiegl and knocked him to
the ground. One held Spiegl down as the
other searched his pockets and removed his two cell phones. The men wrapped red tape around Spiegl's
jacket hood and eyes and used the tape to bind his hands and feet.
Through a
hole in the tape, Spiegl saw one of the men was pointing a gun at his
head. The robbers asked Spiegl, who was dazed,
"Where is the money?" When
Spiegl replied, "There is no money here," the robbers hit him
again. Spiegl was told, "Don't
move," and was hit again each time he tried to move.
One robber
grabbed Spiegl by the back of his jacket, the other grabbed his legs, and they
dragged Spiegl across the tow yard over gravel and rocks, around a green
container, to an unfinished area with three walls in front of his office. A law enforcement investigator later
determined that Spiegl had been dragged a distance of about 60 feet.
As Spiegl
was lying on the ground, he tried to see as much as he could. The tape blindfold wrapped around the hood of
Spiegl's jacket was somewhat flexible, and he was able to see through the tape. He saw a "woman running back and forth." Spiegl testified there was light from the
garage, and he saw that the woman—whom he later identified as Alonzo from
surveillance video shown him at the police station—was wearing jeans and dark
boots. He did not hear her speak.
Eventually,
Spiegl managed to loosen the tape wrapped around his hands and feet, got up,
and bumped into one of his assailants, who knocked him unconscious with
something. Eventually, after he regained
consciousness and heard nothing, Spiegl managed to get untied and called 911
using the phone in the garage.
When
deputies arrived, Spiegl was "freezing" and in pain.
He suffered a gash on his head, two of his teeth were
missing, and he had a broken tooth, cuts on his lips, and bruises on his body
from being kicked.
In addition
to Spiegl's two cell phones, the robbers took $50 in cash from his desk, $80 or
$100 from his wallet which he kept in the truck, his credit card, his business
checkbook, his collection of $1 bills that he had collected over 20 years and
was worth between $5,000 and $6,000, a generator, a vacuum, and a
computer.
Spiegl gave
Imperial County Sheriff's Deputy George Figueroa the license plate number he
had written down. Deputy Marco Contreras
investigated that number. Records from
the Department of Motor Vehicles established that the pickup—a white Toyota
Tundra—was registered to Vita at an address in Salton City.
Later that
night, Deputy Contreras went to Vita's address, but Vita was not there. However, as Vita's girlfriend was speaking
with Deputy Contreras, she received a phone call from Vita on her cell phone,
and she told Deputy Contreras that Vita was on the phone. Deputy Contreras asked to speak with Vita,
who confirmed his identity, "mumbl[ed] the whole time," and sounded
"really nervous." Deputy
Contreras looked at the caller ID information and saw Vita's phone number.
Vita hung
up on Deputy Contreras, but soon thereafter called his girlfriend back and
asked to speak with the officer. This
time, the cell phone Deputy Contreras was using did not show Vita's phone
number. Deputy Contreras testified that
Vita again mumbled, was "very, very nervous," and did not want to
answer questions.
A
surveillance video recording from the Red Earth Casino showed Alonzo, Vita, and
Johnny Hernandez at the casino from 7:47 p.m. to 8:32 p.m. on January 26, the
night of the robbery. David Barboza, an
investigator employed by the Imperial County Sheriff's Office, asked Spiegl to
view a portion of the video. Spiegl
identified the woman in the video—Alonzo—as the same woman he had seen through
his tape blindfold during the robbery.
Spiegl recognized the woman in the video because she was wearing the
same jeans and boots he had seen her wearing during the robbery. At trial,
Ysidro Medina, who worked in security at the Red Earth Casino, testified he
watched the surveillance video with Investigator Barboza, and Medina recognized
the woman in the video as Alonzo, who he knew from having attended middle
school with her.
B.
Romero's Opinion Testimony
During the
testimony of prosecution witness Jose Romero, an investigator employed by the
Imperial County Sheriff's Department, the jury heard five recordings of
conversations in which Alonzo participated while she was in jail.
January 30
The first
recording showed that, on January 30, Alonzo called "Vanessa" and
asked her about Vita's charges and bail.
Alonzo said she and Vita "were up to no good."
The second
recording showed that about an hour and a half later Alonzo again spoke with
Vanessa, who reported to Alonzo that Vita's bail was the same as Alonzo's,
Vita's "highest charge" was "just robbery," and he
"don't [sic] even have
kidnapping on there!" Alonzo
replied, "But they got me on kidnapping."
The third
recording showed that on that same day (January 30) Alonzo's boyfriend, Gaeta,
visited her in jail. They faced each
other separated by Plexiglas and spoke by hand-held phones. Alonzo and Gaeta discussed the times certain
events occurred. Alonzo whispered to
him, "[Y]ou dropped me off . . . about
[10:00] . . . [9:00] to [10:00]." Following a brief delay and background
noises, Gaeta told Alonzo, "I just gotta find out when, um, MARQUITOS goes
to work . . . you know, when's his next day that he works." Following another brief delay and some more
background noises, Alonzo said, "I gotta write this
down . . . I didn't get home till about [1:00] that
night." She then said,
"MARQUITOS gave me a ride."
At this
point during Investigator Romero's testimony, the prosecutor, referring to the
recording of Alonzo's January 30 conversation with Gaeta at the jail, noted the
jury had just "heard [a] lot of whispering going on; a lot of background
noises and a lot of delays." The
prosecutor then asked Investigator Romero, "Given your experience, 15
years, your knowledge of this case, and [your] knowledge of jail visitations,
what does that indicate to you?"
After the court overruled defense objections that the question was
asking for speculation and an "[i]mproper opinion," Investigator
Romero replied: "In my experience,
I was also a correctional officer. And
[in] my experience they know that the phone call [sic] is being taped so they attempt to communicate by hands or with
their lips or writing notes or any type of communication." He added that Alonzo and Gaeta were engaging
in nonverbal communication. He also
explained that during the visit, which was lengthy, "there was a lot of
whispering going on and a lot of pauses.
And when they resumed their conversation, there was a lot of context
with the rest of the conversation."
The
prosecutor then asked Investigator Romero:
"[B]ased on hearing this conversation, are they concocting
anything, to your knowledge, based on everything that you know about this case?" Over a defense objection that the question
called for speculation, Investigator Romero opined that Alonzo and Gaeta were
concocting a fake alibi.
The fourth recording showed that,
several months later on May 11, Alonzo called Gaeta by telephone. Alonzo told him, "Remember that you
picked me up at MARCOS', not at the casino, babe." She also told Gaeta, "[T]hey're gonna
subpoena you and my mom . . . so, you should be coming to
court next week." Alonzo also said,
"[I]t looks pretty good for me, babe . . . I'm gonna
be all right . . . okay?" Gaeta replied: "Yeah, I mean,
[STUTTERING] . . . there's no way they
can . . . they're just trying
to . . . [unintelligible] this thing will be
over . . . because you know I know that you were not there
and that's the bottom line." Alonzo
said, "That's the bottom line."
May
12
The last of
the five recordings showed that, the next day (May 12), Alonzo again called
Gaeta from jail. Alonzo told Gaeta,
"[O]n your statement it's wrong . . . you said that
you picked me up at the . . . at
the . . . at the . . . at the casino
and you picked me [voices overlapping]."
Gaeta replied, "I didn't pick you up
at . . . ." The
following exchange then took place:
"[Alonzo]:
That's what, I'm trying to say . . . well, I don't
even want to talk to you about it, but you know where you picked me
up . . . and you know how [voices overlapping].
"[Gaeta]:
[Voices overlapping] [STUTTERING] . . . be quiet
already! [B]e quiet already! [B]ecause
[voices overlapping] . . . ."
Alonzo then
asked Gaeta to visit her "tomorrow."
Gaeta cryptically said, "[T]
going to . . . I'm
going to put some . . . some . . . some
little things there for you."
(Italics added.) He then
repeatedly asked Alonzo whether she understood.
Alonzo replied, "I don't understand," and then laughed. Gaeta told her he was going to
"cut" himself on his finger, and then said, "I was gonna ask
you . . . do you understand me?" Alonzo replied, "Okay." Gaeta referred to "that guy," and
told Alonzo, "he's gonna probably ask me this and
that . . . do you understand me?" Alonzo replied, "Yeah." Gaeta then referred to his hand again,
saying, "I [unintelligible] on my
hand . . . and . . . and I can't hide
it, do you understand me?" He then
said, "[H]e tells me, pay attention to what he's gonna ask you, you know?" (Italics added.) Soon thereafter, Alonzo told Gaeta,
"[T]he statement looks good . . . I mean,
After this
fifth recorded conversation was played for the jury, Investigator Romero opined
that this conversation between Alonzo and Gaeta "continues with the fake
alibi." The prosecutor noted that
"[i]n the last part of the conversation that we heard, Gaeta is talking
about his hands." She then asked Investigator
Romero, "Based on your experience, knowledge and facts of this case, what
does that mean [or how should it] be interpreted?" Investigator Romero replied, "That
[Gaeta] was going to come visit her and [he] was going to try to communicate
with her through his hand."
Gaeta's arrest
during his May 18 jail visit
On May 18,
Gaeta came to the jail to visit Alonzo.
Rita Nakadaira, a correctional clerk employed by the Imperial County
Sheriff's Office, testified she was at the front desk of the jail that day,
monitoring visitation. She remembered
Gaeta's visit because, "when he entered the jail area he noticeably, he
did have writing on his hands. And I did
see that."
Imperial
County Sheriff's Investigator Ryan Kelley testified he contacted Gaeta in a
secured area of the jail on May 18, the day Gaeta visited Alonzo there, and he
saw the following written on Gaeta's left palm:
"When last seen?"; "What were you doing there?";
"How did you get there?"; "Marcos was not there when I picked
you up"; "What did I pick you up on?"; and "I love
you." Another officer took a
photograph of Gaeta's left palm in the presence of Investigator Kelley, who
authenticated the photograph at trial.
Investigator Kelley testified he arrested Gaeta in the jail "[f]or
communication with the prisoner [(Alonzo)] without permission from the officer
in charge and for resisting, delaying or obstructing a peace
officer."
B.
Alonzo did
not testify. During his closing
argument, defense counsel argued that Alonzo was innocent because she was not
present during the commission of the crimes against Spiegl in his tow
yard.
DISCUSSION
I. DENIAL
OF NEW TRIAL MOTION (CLAIM OF JUROR
MISCONDUCT)
Alonzo
first contends the court committed prejudicial error and violated her rights
under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution
by denying her motion for new trial, in which she argued jurors committed
misconduct by violating the court's instruction that they not consider or
discuss in their deliberations her failure to testify. We conclude the
court properly found that jury misconduct occurred, but that it was
harmless. Accordingly, we also conclude
the court did not err or violate Alonzo's federal constitutional rights by
denying her new trial motion.
A.
1. Court's
instruction
Regarding the fact that
Alonzo did not testify, the court instructed the jury under CALCRIM No. 355 as
follows:
"A defendant has an absolute constitutional right
not to testify. He or she may rely on
the state of the evidence and argue that the People have failed to prove the
charges beyond a reasonable doubt. Do
not consider, for any reason at all, the fact that the defendant
did not testify. Do not discuss that
fact during your deliberations or let it influence your decision in any way." (Italics added.)
2.
Alonzo's petition for disclosure
of juror information
After the
jury returned its verdicts, defense counsel sought a continuance of the
sentencing hearing to investigate a potential juror misconduct claim that,
during deliberations, jurors had discussed the fact that Alonzo did not testify
or present an alibi. The court granted
the requested continuance.
Thereafter,
the defense filed a petition under Code of Civil Procedure section 237
requesting disclosure of the telephone numbers and addresses of all the jurors
to assist the preparation of a new trial motion based on the alleged
misconduct. The People opposed the
petition. Following a hearing, the court
found the defense had presented a prima facie case for partial disclosure of
juror information and ordered that "at least one juror be summoned to
discuss certain issues."
a. In camera
questioning of juror No. 10 and the court's petition ruling
On January
4, 2011, juror No. 10 was questioned in chambers by the court and counsel in
response to Alonzo's claim of juror misconduct.
The court asked the juror to clarify the statement he had made about the
fact that Alonzo did not testify during the trial. Juror No. 10 replied that while in the jury
room with the other jurors, he said something to the effect that "[i]t
didn't help her defense." When
asked about the reaction of the other jurors, juror No. 10 answered that
"it seemed to not really affect" them. The juror added, "One juror did say if
it was them [sic]
and . . . they [sic]
didn't do it, they [sic] would have
sung like a canary."
The court
then asked, "[W]hat was the next comment, if any?" Juror No. 10 replied that both he and the
foreperson said, "We are getting off track here," and "Let's get
back on track."
In response
to defense counsel's questioning, juror No. 10 indicated that another juror
first raised the subject of Alonzo's decision to not testify, but juror No. 10
did not recall who it was. Juror No. 10
explained it was then that he said, "It didn't help." He indicated that the third juror who made
the comment about singing like a canary was a female, there was only one
discussion about Alonzo's failure to testify, and that discussion took place
"[m]aybe an hour or two" after the jury began its deliberations and
"[a] few hours" before the jury rendered its verdicts.
The court
questioned juror No. 10 further, clarifying that the jurors' conversation about
Alonzo's not testifying consisted of three brief comments and the admonishment
that the jury should get back on track.
i. Court's findings
and ruling
After juror
No. 10 exited chambers, the court addressed Alonzo's petition for disclosure of
juror information and found there was no need for any further disclosure of
such information. The court found that
"we have a full account of what happened," noting that "if we
open this up and [bring] in" the other 11 jurors, "there may be little
nuances of what happened." The
court then denied Alonzo's request for disclosure of additional juror
information, finding that juror No. 10's account was "very credible,"
and "this is probably as good as it's going to get for the
defense." The court found that
"there's no question but that there's been juror misconduct" because
"they discussed the fact that Miss Alonzo did not testify." The court indicated that the pertinent
question was whether the juror misconduct warranted a new trial. However, the court added it was
"important" that one of the juror was "mindful" of the fact
that discussion of Alonzo's failure to testify was not appropriate and told the
other jurors they were "off track" and that the jurors
"acknowledged that, left it, and moved on."
3.
Alonzo
thereafter filed a motion for new trial in which she complained about the jury
misconduct and claimed the juror comment about singing like a canary showed the
juror believed the burden of proof had shifted to the defense, and that Alonzo
was required to account for her whereabouts on the night of the crimes. In support of her motion, Alonzo attached a
copy of the reporter's transcript of the January 4, 2011 proceeding in chambers
(discussed, ante) at which juror No.
10 was questioned.
The People
opposed the motion, arguing the jurors did not commit misconduct because the
three comments about Alonzo's failure to testify were "natural" and
"transitory" comments, given that she claimed at trial that she could
not have committed any of the crimes because she was not present at the crime
scene. The prosecution asserted the
comments were just "a passing reference to an inappropriate
matter."
At the
hearing on Alonzo's new trial motion that preceded the sentencing, the court,
after hearing additional arguments from both counsel, again found juror
misconduct had occurred, but denied the motion on the ground the misconduct
"did not harm [her] case."
Noting it had instructed the jury to neither comment on, nor consider,
the fact that Alonzo did not testify, the court found that "three of them
did comment on it." However, the
court characterized the misconduct as "technical misconduct," and
repeatedly found the juror comments did not demonstrate any bias. The court indicated it had considered the
total record, including the evidence presented against Alonzo. The court highlighted some of the most
incriminating evidence, including the evidence showing Alonzo attempted to
fabricate an alibi (discussed, ante),
and found that "[t]he complete record shows a very, very strong case against
[her]." The court noted that the
jurors made the comments "at the very outset of the deliberation" and
found the jurors "couldn't have discussed a lot of this." The court stated that the strong evidence
against Alonzo "must have certainly been on their minds" and that it
was "a little bit of human nature" for the jurors to wonder why she
did not testify. Noting that the
foreperson "recognized what was going on" and put the other jurors
"back on track" by advising them that the comments about Alonzo's
failure to testify were not appropriate, the court found that, "looking at
the whole record," the comments of the three jurors did not have "a
significant impact on the jury when they arrived at their verdict," and
"there was no real harm" to Alonzo.
Concluding that "the presumption of prejudice is overcome when one
looks at the whole record," the court denied Alonzo's new trial
motion.
B.
A defendant
has a constitutional right to a trial
by an impartial jury. (In re Hamilton
(1999) 20 Cal.4th 273, 293.) "An
impartial jury is one in which no member has been improperly influenced
[citations] and every member ' "is capable and willing to decide the case
solely on the evidence before it." ' " (Id. at p. 294.)
"Prejudicial
jury misconduct constitutes grounds for a new trial." (People v. Blackwell (1987) 191
Cal.App.3d 925, 929, citing § 1181, subd. 3.)
In general, jurors commit misconduct when they directly violate the
oaths, duties, and admonitions imposed on them.
(In re Hamilton, supra, 20 Cal.4th at p. 294.)
This court
has explained that "[t]o challenge the validity of a verdict based on
juror misconduct, a defendant may present evidence of overt acts or statements
that are objectively ascertainable by sight, hearing, or the other
senses." (People v. Cissna
(2010) 182 Cal.App.4th 1105, 1116, citing People v. Danks (2004) 32
Cal.4th 269, 302 & Evid. Code, § 1150, subd. (a).) "No evidence may be presented concerning
the subjective reasoning processes of a juror that can neither be corroborated
nor disproved . . . ."
(People v. Cissna, supra, at p. 1116, citing People v.
Danks, supra, at p. 302, In re Hamilton, supra, 20
Cal.4th at pp. 294, 296 & In re Carpenter (1995) 9 Cal.4th 634,
653-654.)
A jury that
violates a trial court's instruction not to discuss the defendant's failure to
testify commits misconduct. (People
v. Leonard (2007) 40 Cal.4th
1370, 1425 (Leonard).) "This misconduct gives rise to a
presumption of prejudice, which 'may be rebutted . . . by a
reviewing court's determination, upon [an examination of] the entire record,
that there is no substantial likelihood that the [defendant] suffered actual
harm.' " (Ibid.; see also People
v. Danks, supra, 32 Cal.4th at p. 303 [applying a similar standard
to allegations of juror bias].)
"Transitory
comments of wonderment and curiosity, although misconduct, are normally
innocuous, particularly when a comment stands alone without any further
discussion. . . ." (People v. Hord (1993) 15
Cal.App.4th 711, 727-728.)
1. Standard of
review
On appeal
from a ruling denying a new trial motion based on juror misconduct, we defer to
the trial court's factual findings if supported by substantial evidence and
exercise our independent judgment on the issue of whether prejudice arose from
the misconduct. (People v. Loker
(2008) 44 Cal.4th 691, 747; People v. Cissna, supra, 182
Cal.App.4th at p. 1117.)
C.
The
Attorney General does not dispute that the jurors committed misconduct by
discussing the fact that Alonzo did not testify, and thus a rebuttable
presumption of prejudice arose. (See Leonard, supra, 40 Cal.4th
at p. 1425.) Accordingly, the issue
presented here is whether the presumption of prejudice has been rebutted. (Ibid.)
Independently
reviewing the entire record, we conclude the presumption of prejudice has been
rebutted because the record shows there is no substantial likelihood Alonzo
suffered actual harm as a result of the jury misconduct. As discussed more fully, ante, juror No. 10, who was one of the three jurors who improperly
commented during deliberations on Alonzo's failure to testify, was questioned
at length in chambers by both the court and Alonzo's counsel. The record supports the court's finding that
the presumption of prejudice created by the juror misconduct in this case was
rebutted. During the questioning by the
court and counsel, juror No. 10 presented a detailed and consistent account of
the nature and extent of the jurors' comments.
The court accepted the version of the jurors' comments that juror No. 10
presented, and found juror No. 10 was "very credible." We will not disturb that credibility
determination, which is supported by the record of that proceeding. (See People
v. Ochoa (1993) 6 Cal.4th 1199, 1206 ["'[I]t is the exclusive province
of the trial judge or jury to determine the credibility of a
witness . . . ."], quoting People v. Jones (1990) 51 Cal.3d 294, 314.)
The record
also shows the jurors' comments were brief, they were made early in the
deliberative process
name="_ftnref4" title="">[4]
without any suggestion that any of the jurors believed Alonzo's failure to
testify indicated she was guilty, and the foreperson admonished the jury that
the comments were inappropriate and the jury must get "back on
track." According to juror No. 10, whose in camera responses the court
credited, the inappropriate comments "seemed to not really affect"
the other jurors.
The
California Supreme Court has recognized that "[i]t is natural for jurors
to wonder about a defendant's absence from the witness stand." (People v. Loker, supra, 44 Cal.4th at p. 749,
citing Leonard, supra,
40 Cal.4th at p. 1425.)
Here, as
the court properly found, it was "a little bit of human nature" for
the jurors to wonder why she did not testify, and the jurors' brief comments,
although misconduct, were merely innocuous "[t]ransitory comments of
wonderment and curiosity." (People v. Hord,
In any
event, as the court correctly found, the evidence of Alonzo's guilt (discussed
more fully, ante, in the factual
background) was "extremely strong."
For example, the surveillance video recording from the Red Earth Casino
showed Alonzo with Vita and Hernandez at the casino from 7:47 p.m. to 8:32 p.m.
on the night of the robbery, shortly before the victim (Spiegl) received the
9:42 p.m. phone call from a female caller—who used what the parties agree on
appeal was Vita's cell phone—who lured him away from his tow yard where the
crimes were committed later that night after he returned. Before trial, Spiegl identified the woman in
the video—Alonzo—as the same woman he had seen through his tape blindfold
during the robbery incident. In
addition, the prosecution presented strong evidence that Alonzo, during
recorded conversations in jail, made self-incriminating statements (such as
"they got me on kidnapping") and tried to fabricate an alibi with the
assistance of her boyfriend.
For all of
the foregoing reasons, we conclude there is no substantial likelihood Alonzo
was prejudiced by the jury's brief comments regarding her failure to testify,
and thus the court did not err or violate her constitutional rights by denying
her new trial motion.
II. DENIAL
OF PETITION FOR RELEASE OF JUROR CONTACT INFORMATION
Alonzo also
contends that, to the extent reversal is not required based on the jury
misconduct claim raised in her new trial motion, the court erred by denying her
petition for release of juror contact information, thereby preventing her from
developing a full record of the jury misconduct. We reject this contention.
A.
As set
forth more fully, ante, in the
background related to Alonzo's claim that the court erroneously denied the
motion for new trial, Alonzo filed a petition for disclosure of the telephone
numbers and addresses of all the
jurors, asserting she needed the information for the preparation of her new
trial motion. Following a hearing on the
petition, the court ordered that "at least one juror be summoned to
discuss certain issues." Later,
after juror No. 10 was questioned in chambers by the court and counsel in
response to Alonzo's petition and claim of juror misconduct, the court found
that juror No. 10 gave a "full account" (discussed,
credible." The court ruled there
was no need for any further disclosure of juror information, finding that
"this is probably as good as it's going to get for the defense."
B.
After the
recording of a jury verdict in a criminal case, the court's record of personal
juror identification information (names, addresses, and telephone numbers) is
sealed. (Code Civ. Proc., § 237, subd.
(a)(2).) On a petition filed by a
defendant or his or her counsel, a trial court may in its discretion grant
access to such information when necessary to the development of a motion for
new trial or "any other lawful purpose." (Code Civ. Proc., §
206, subd. (g).)
A trial
court's denial of a petition for access to juror identification information is
reviewed for abuse of discretion. (People v. Jones (1998) 17
Cal.4th 279, 317.)
C.
Alonzo
claims the court prejudicially prevented her from fully developing the record
of juror misconduct when it denied her petition for release of juror
information. She complains that juror
No. 10's "paraphrased account of other jurors' statements did not provide
the court with adequate information to deny [her] motion for new
trial."
We conclude
the court did not abuse its discretion in denying Alonzo's petition for release
of the sealed juror contact information.
During the extensive in camera questioning by the court and counsel,
juror No. 10 presented a detailed and consistent account of the nature and
extent of the jurors' comments regarding Alonzo's failure to testify. The court accepted the version of the jurors'
comments that juror No. 10 presented, and found that juror No. 10's "full
account" was "very credible," essentially concluding that juror
No. 10 was a credible witness. We will
not disturb that credibility determination, which is supported by the record of
that proceeding. (See
The court did not err by denying Alonzo's petition.
III
FABRICATION
Next, Alonzo
contends the court prejudicially erred by admitting (1) evidence that her
boyfriend Gaeta attempted to covertly communicate with her when she was in
jail, (2) evidence that he was arrested there, and (3) Investigator Romero's
opinion testimony that Alonzo and Gaeta were attempting to fabricate an
alibi. These contentions are unavailing.
A.
During the
testimony of Investigator Romero, as discussed more fully, ante, the jury heard five recordings of conversations Alonzo had
with various people while she was in jail.
Three of those recorded conversations were between Alonzo and her
boyfriend. The first occurred on January
30 when Gaeta visited her in jail, and the other two took place by telephone on
May 11 and 12. As this evidence is set forth
in detail in the factual background, we do not summarize it again here.
B.
1.
Alonzo
first contends the court prejudicially erred by admitting the testimony of
Investigator Kelley that he saw the following written on Gaeta's left palm when
he contacted Gaeta in a secured area of the jail on May 18 when Gaeta was there
to visit Alonzo:
"When last seen?"; "What were you doing
there?"; "How did you get there?"; "Marcos was not there
when I picked you up"; "What did I pick you up on?"; and "I
love you."
Alonzo
asserts this evidence was inadmissible because "[she] did not authorize
the writing," and "[t]here was insufficient evidence [she] directed
Gaeta to write on his hand." This
assertion is unavailing. Alonzo has
cited no authority, and we are aware of none, that required the prosecution to
present evidence that Alonzo authorized or directed Gaeta to write on his
palm. Alonzo's reliance on
597, is unavailing, as the decision in that case sets forth no such
requirement. We conclude the court
properly admitted this evidence because it was relevant to the factual issues
of whether Alonzo and Gaeta tried to fabricate an alibi during their pretrial
conversations when she was in jail, and whether Alonzo thereby exhibited a
consciousness of guilt.
2.
Investigator Romero's opinion
testimony and his testimony about Gaeta's arrest
Alonzo also
contends the court prejudicially erred by admitting (1) Investigator Romero's
opinion testimony that Alonzo and Gaeta were concocting a fake alibi, and (2)
Investigator Romero's testimony that Gaeta was arrested at the jail on May 18
for "illegal communication with an inmate" (Alonzo).
In support
of the first contention, Alonzo asserts Investigator Romero's opinion was
inadmissible because "[t]he jury was fully equipped to evaluate [her] and
Gaeta's statements and determine whether they were an effort to fabricate an
alibi"; and, thus, it "did not assist" the jury. This contention is unavailing.
Evidence
Code section 801, subdivision
(a) "permits the introduction of testimony by a qualified expert when that
testimony may 'assist the trier of fact.' " (People v. Brown
(2004) 33 Cal.4th 892, 900.)
Here, the
Attorney General appears to concede Investigator Romero's opinion testimony did
not assist the jury. Specifically, the
Attorney General asserts that, "[v]iewed in the context of the recorded
words that [Alonzo] and Gaeta actually said aloud to each other, Investigator
Romero's testimony was merely cumulative and not prejudicial. His belief that the couple was engaged in
fabricating an alibi merely confirmed the obvious."
We shall
assume, without deciding, that the challenged opinion testimony of Investigator
Romero was inadmissible because it did not assist the jury.
We shall
also assume, without deciding, that Investigator Romero's testimony about
Gaeta's arrest was inadmissible. We note
the Attorney General does not argue in favor of its admissibility, asserting
instead that "there was no harm in the jury hearing that Gaeta was
arrested after they heard that he came into the jail with some writing on his
left hand, consistent with what he told [Alonzo] he would do."
Alonzo's
claims of evidentiary error are unavailing because the assumed errors are
harmless. As a preliminary matter, we
reject Alonzo's contention that reversal is required because the admission of
the challenged testimony rendered the trial "fundamentally unfair"
and there is no showing the error was harmless beyond a reasonable doubt.
trial motion at the sentencing hearing, stated that the alibi evidence was
"very, very damning," Alonzo asserts that "the consciousness of
guilt evidence was crucial to the case."
She also states that Investigator Romero's opinion testimony
"tipped the scales."
We conclude
Alonzo has failed to show the assumed errors rendered the trial
"fundamentally unfair," and thus the applicable test for prejudice is
the Watson harmless error
standard, under which the judgment may be overturned only if "it is
reasonably probable that a result more favorable to the [defendant] would have
been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
As we have already discussed, the evidence of Alonzo's guilt (apart from
Investigator Romero's testimony) was very strong. As set forth more fully in the factual
background, the prosecution presented substantial evidence from which a
reasonable jury could find that Alonzo used Vita's cell phone to make the fake
towing service request to lure Spiegl away from his tow yard. She was videotaped with Vita and Hernandez at
the Red Earth Casino shortly before she made that call, and Spiegl identified
her when he viewed the videotape. She
also made self-incriminating statements during five recorded conversations
while in jail, including statements showing she intended to fabricate a story
about where she was at the time the crimes against Spiegl were committed. In sum, Alonzo has failed to meet her burden
of demonstrating a reasonable probability she would have obtained a more
favorable result in the absence of the erroneous admission of Investigator
Romero's testimony.
IV. SUFFICIENCY
OF THE EVIDENCE (COUNT 1)
Alonzo claims
there is insufficient evidence to support her count 1 conviction of kidnapping
to commit robbery because the movement of Spiegl within his own tow yard did
not increase his risk of harm. We reject
this claim.
A.
When
assessing a challenge to the sufficiency
of the evidence supporting a conviction, we apply the substantial evidence
standard of review, under which we view the evidence "in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt." (People v. Johnson (1980) 26
Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307,
319.) "The same standard of review applies to cases in which the
prosecution relies mainly on circumstantial evidence." (People v.
Maury (2003) 30 Cal.4th 342, 396.)
We do not
reweigh the evidence, resolve conflicts in the evidence, or reevaluate the
credibility of witnesses. (People v. Ochoa, supra, 6 Cal.4th at p.
1206; People v. Jones, supra, 51 Cal.3d at p. 314.)
"Resolution of conflicts and inconsistencies in the testimony is the
exclusive province of the trier of fact." (People v. Young
(2005) 34 Cal.4th 1149, 1181.)
B.
In order to
convict a person of kidnapping
to commit robbery (§ 209, subdivision (b)(1)), the prosecution must prove
the movement of the victim was not merely incidental to the commission of the
robbery. (People v. Rayford
(1994) 9 Cal.4th 1, 12; CALCRIM No. 1203.)
In other words, the movement must create a risk of harm to the victim
that would not necessarily be present in a robbery. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152; People v. Rayford, at p. 12.) The jury considers the distance the defendant
moved the victim and the scope and nature of the movement. (People
v. Rayford, at p. 12.) The Supreme
Court has explained that movement increases the risk of harm when it decreases
the likelihood of detection, increases the danger inherent in a victim's
foreseeable attempts to escape, or enables the attacker "to commit
additional crimes." (People v. Dominguez, at p. 1152.)
This case
is a textbook example of kidnapping
to commit robbery. Spiegl was dragged by
Alonzo's two male cohorts some 60 feet over gravel, during a rain storm, from
an area of the tow yard that was open to public view to an enclosed area away
from public view. Spiegl was blindfolded,
his hands and feet were bound, and, thus, he was totally under their
control. He had no means of escape and
could not expect help from a passer-by.
Alonzo
claims the movement of Spiegl 60 feet within his tow yard did not substantially
increase his risk of harm because the tow yard was in a remote area. This claim is unavailing. It is pure speculation to assume no one drove
by the tow yard during the robbery after Spiegl was moved the 60 feet to a
place that was not open to public view.
The evidence supports the jury's finding that the movement in this case
was not merely incidental to the robbery.
(See People v. Rayford, supra,
9 Cal.4th at p. 12.)
V. CLAIM
OF INSTRUCTIONAL ERROR (COUNT 3: ELDER
ABUSE)
Next,
Alonzo contends her count 3 conviction of elder abuse with infliction of great
bodily injury (§ 368(b)(1))
name="_ftnref6" title="">[6]
must be reversed because the court erroneously instructed the jury it could
convict her of this crime on an incorrect legal theory. Specifically, she claims the court
erroneously instructed the jury under CALCRIM No. 830 that she could be
convicted of count 3 if she "caused or permitted"
(italics added) Spiegl to suffer or be injured.
v. Heitzman (1994) 9 Cal.4th 189 (Heitzman),
she asserts that "to be convicted of elder abuse for permitting abuse, the defendant must have a legal duty to control
the conduct of the abuser." Here,
she argues, the court erroneously allowed the jury to convict her of count 3
"using a legally impermissible theory" because she "had no duty
to control Hernandez and Vita," who perpetrated the elder abuse. We conclude the court erred by instructing
the jury under CALCRIM No. 830, but conclude the error was harmless.
A.
"It is
error to give an instruction which, while correctly stating a principle of law,
has no application to the facts of the case." (People
v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) If that is the only error, the error is one
of state law subject to the Watson
test for prejudice (discussed, ante),
under which reversal is required only if it is reasonably probable the
defendant would have obtained a more favorable result in the absence of the
error. (Id. at pp. 1129-1130;
see People v. Watson,
The
California Supreme Court explained in Guiton
that "[i]n determining whether there was prejudice, the entire record
should be examined, including the facts and the instructions, the arguments of
counsel, any communications from the jury during deliberations, and the entire
verdict." (Guiton, supra, 4 Cal.4th
at p. 1130.) The high court also
explained that "instruction on an unsupported theory is prejudicial only
if that theory became the sole basis
of the verdict of guilt; if the jury based its verdict on [a] valid ground, or
on both the valid and the invalid ground, there would be no prejudice, for
there would be a valid basis for the verdict." (Ibid.,
italics added.)
B.
The
California Supreme Court has explained that criminal liability for elder abuse
may be imposed under section 368 "on any person who affirmatively causes
or inflicts unjustifiable pain or suffering on an elder, as well as on anyone
who permits the infliction of such
abuse on an elder"; and, thus, "the class of potential defendants
includes both those who directly inflict the abuse as well as those who
supra, 9 Cal.4th at p. 214, italics
added.) By including such offenders in
the class of "potential defendants," the high court in
imposition of criminal liability for elder abuse on defendants found guilty of
that offense under theories of conspiracy or aiding and abetting. (See id.
at pp. 197-214.)
Here,
during closing arguments before the court instructed the jury, the prosecutor
conceded there was "no evidence" that Alonzo "actually hit,
beat, [or] dragged" Spiegl, adding that "there were points in time
that Mr. Spiegl testified that he didn't know which one of the three [(Vita,
Hernandez, and Alonzo)] were hitting him, kicking him, beating him"
because "[h]e lost consciousness . . . several
times." As there was no evidence
Alonzo participated in the acts of blindfolding Spiegl, dragging him 60 feet
across the tow yard over gravel during a rain storm, and repeatedly attacking
him physically, her criminal liability for elder abuse with infliction of great
bodily injury could not be based on a theory that she directly inflicted such
abuse.
Alonzo's
criminal liability for this crime also could not be based on a theory that she
permitted such abuse. In order for
criminal liability to arise under section 368 for permitting an elder to suffer unjustifiable pain or suffering,
"a defendant must stand in a special relationship to the individual
inflicting the abuse on the elder such that the defendant is under an existing
duty to supervise and control that individual's conduct." (People
v. Heitzman, supra, 9 Cal.4th at
p. 212.) Here, Alonzo argues, and the
Attorney General does not dispute, that she did not stand in a special
relationship with Vita and Hernandez and thus did not have a legal duty to
control Vita and Hernandez, the perpetrators of the elder abuse.
Accordingly,
we conclude the court erred by instructing the jury under CALCRIM No. 830 that
Alonzo could be convicted of elder abuse with infliction of great bodily injury
as charged in count 3 if she caused or permitted
Spiegl to suffer or be injured because that instruction "ha[d] no
application to the facts of the case."
(Guiton, supra, 4 Cal.4th at p. 1129.)
We also
conclude, however, that the court's instructional error was harmless under the
the jury's count 3 elder abuse verdict was based on a "valid ground"
(Guiton, supra, 4 Cal.4th at p. 1130)—the prosecution's theory of conspiracy
and the natural and probable consequences doctrine—and, thus, Alonzo has not
shown, and cannot demonstrate, she would have obtained a more favorable result
in the absence of the instructional error.
The prosecutor argued during closing arguments that Alonzo conspired
with Vita and a third suspect (Hernandez) to burglarize Spiegl's tow yard and
rob him and that Alonzo was liable under the natural and probable consequences
doctrine for the elder abuse with infliction of great bodily injury that Vita
and Hernandez inflicted on Spiegl because a reasonable person in her position
would have known that the commission of such abuse was a natural and probable
consequence of the commission of those crimes.
The record
shows the court properly instructed the jury under a modified version of
CALCRIM No. 402 that the jury could find Alonzo guilty of elder abuse with
infliction of great bodily injury if the prosecution "prove[d] that [¶] 1.
The defendant is guilty of First Degree Robbery and First Degree Burglary; [¶]
2. During the commission of First Degree Robbery and First Degree Burglary, a
coparticipant in that First Degree Robbery and First Degree Burglary committed
the crime of . . . Elder Abuse, Infliction of Injury; [¶]
AND [¶] 3. Under all the circumstances, a
reasonable person in the defendant's position would have known that the
commission of . . . Elder Abuse, Infliction of Injury was a
natural and probable consequence of the commission of the First Degree Robbery
and First Degree Burglary."
(Italics added.) Alonzo does not
claim the court committed error by giving this instruction, nor does she
challenge the sufficiency of the evidence supporting the jury's findings that
(1) Alonzo was guilty of the crimes of first degree robbery (count 2) and first
degree burglary (count 4), (2) a coparticipant in those crimes (Vita,
Hernandez, or both) committed elder abuse with infliction of great bodily
injury against Spiegl during the commission of those crimes, and (3) a
reasonable person in Alonzo's position would have known that the commission of
elder abuse with infliction of great bodily was a natural and probable
consequence of the commission of the first degree robbery and first degree
burglary.
For the
foregoing reasons, we conclude that although the court erred by instructing the
jury that Alonzo could be convicted of elder abuse with infliction of great
bodily if she caused or permitted Spiegl to suffer or be injured, the error was
harmless.
VI. SECTION
654 (COUNTS 3 & 4)
Last, Alonzo contends the sentences
imposed for her count 3 conviction of elder abuse and her count 4 conviction of
first degree burglary must be stayed under section 654. We reject her contention as to count 3, as to
which the court imposed a consecutive one-year prison term plus a consecutive
three-year term for the infliction of great bodily injury enhancement. However, we conclude the judgment must be
modified to stay under section 654 the execution of the consecutive four-year term
the court imposed for Lowe's count 4 conviction of first degree burglary. As modified, the judgment is affirmed.
A.
For her
conviction of kidnapping to commit robbery, the court sentenced Alonzo to an
indeterminate term of life with the possibility of parole. For her conviction of first degree robbery,
the court imposed, but stayed under section 654, a consecutive determinate
prison term of one year four months (i.e., one-third the midterm of four
years). For her conviction of elder abuse,
the court imposed a consecutive one-year term (i.e., one-third the middle term
of three years), plus a consecutive three-year term for the infliction of great
bodily injury enhancement on a victim 69 years of age. For her conviction of first degree burglary,
the court imposed a consecutive midterm of four years. Last, for her conviction of conspiracy to
commit first degree robbery and first degree burglary, the court imposed, but
stayed under section 654, a consecutive term of one year four months (i.e.,
one-third the midterm of four years).
B.
Section
654, subdivision (a) provides in part:
"An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision."
Section 654
"precludes multiple punishment for a single act or omission, or an
indivisible course of conduct" (
591) and ensures the defendant's punishment will be commensurate with his or
her criminal culpability (People v.
Kramer (2002) 29 Cal.4th 720, 723).
If a defendant suffers two convictions and punishment for one is barred
by section 654, that section requires the sentence for one conviction be
imposed and the other be imposed and then
stayed. (People v. Deloza, at pp. 591-592.)
Whether a
course of conduct is indivisible for purposes of section 654 depends on the
intent and objective of the defendant, not the temporal proximity of the
offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Generally, if all the criminal acts were
incident to one objective, then punishment may be imposed only as to one of the
offenses committed. (
501, 507; People v. Garcia (1995) 32
Cal.App.4th 1756, 1781.)
The
question of whether a defendant harbored multiple criminal objectives is a
question of fact for the trial court to decide.
(People v. Coleman (1989) 48
Cal.3d 112, 162.) A trial court's
determination that a defendant held multiple criminal objectives will be upheld
on appeal if it is supported by substantial
evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
C.
1.
We reject
Alonzo's claim that the one-year sentence imposed for her count 3 elder abuse
conviction and the related three-year enhancement, both of which the court
ordered her to serve consecutively to the life-with-possibility-of-parole
sentence it imposed for her count 1 conviction of kidnapping to commit robbery,
must be stayed under section 654. Citing
People v. Bradley (2003) 111
Cal.App.4th 765 (Bradley), Alonzo
asserts she may not be separately punished for count 3 because she "did
not participate in the conduct underlying Count 3," she was convicted of
that count under a theory of natural and probable consequences "based on
her participation in the robbery and burglary," and she "did not have
an independent intent [to] commit elder abuse."
Alonzo's
reliance on Bradley is
unavailing. In that case, the female
defendant was convicted of robbery and attempted murder as an aider and
abettor. (Bradley, supra, 11
Cal.App.4th at p. 767.) According to a
plan she devised with her two male accomplices, the defendant lured the
prosperous looking victim into his car and drove with him to a location where
the accomplices entered the car. The
defendant got out of the car and joined a female friend in another car following
behind the victim's car, and they all drove to a residential area where the
victim was robbed by the male accomplices.
(Id. at pp. 767-768.) However, when the accomplices asked the
victim to climb into the trunk of the car, the victim claimed he did not know
how to open the trunk because the car was not his, and one of the accomplices
then shot him. (Id. at p. 768.) Finding that
the robbery and attempted murder had different objectives, the trial court
sentenced the female defendant to consecutive prison terms for the two
offenses. (Id. at p. 767.) The Court of
Appeal reversed, finding that section 654 prohibited consecutive sentencing for
the two crimes because the defendant "only had a single criminal
objective—the robbery of [the victim]" (Bradley, supra, at p. 771), and, thus, she was less culpable than
her male confederates. (
court reasoned that the defendant was "unaware" of the unplanned
second crime—attempted murder—until after it was committed, and thus she
"[did not] have an opportunity to prevent or even protest its
commission. As a result, there simply
was no evidence [she] exhibited the more dangerous mental state warranting a
consecutive sentence under [section] 654."
(Bradley, supra, at p. 771.)
Here,
Alonzo did exhibit a more dangerous mental state warranting under section 654
the consecutive count 3 sentences the court imposed. Unlike the Bradley defendant, who had removed herself from the crime scene
prior to the unplanned attempted murder by getting out of the victim's car and
climbing into another vehicle, the evidence shows Alonzo was present and played
an active role during the burglary and robbery while her two confederates were
inflicting the elder abuse that was the natural and probable consequence of
those crimes. As detailed more fully,
Alonzo lured Spiegl away from his tow yard by calling him and claiming she
needed a tow. Instead of staying inside
Vita's truck, she joined him and their third confederate at the crime scene and
participated in the burglarizing of Spiegl's property. Spiegl testified that while he lay on the
floor after being physically attacked, bound, blindfolded, robbed, and dragged
in the rain over gravel across the tow yard, he saw Alonzo running back and
forth through his loosened blindfold.
Spiegl also testified he was repeatedly assaulted while in his helpless
position. A rational jury could
reasonably infer Alonzo knew about the elder abuse with great bodily injury
that her confederates were perpetrating while she was indifferently running
around near Spiegl actively helping her coconspirators take his
possessions. The foregoing evidence
establishes that Alonzo acted with a more dangerous mental state and greater culpability
than the Bradley defendant, warranting
the court's imposition of the consecutive count 3 sentences to ensure her
punishment is commensurate with her criminal culpability. (See People
v. Kramer, supra, 29
| Description | A jury convicted Doreen Banke Alonzo of the following five crimes committed against 69-year-old Andres Spiegl at his tow truck business/residence in Salton City: (1) kidnapping to commit robbery (count 1: Pen. Code, §§ 209, subd. (b)(1), 211) (undesignated statutory references will be to the Penal Code unless otherwise specified); (2) first degree robbery (count 2: § 211); (3) elder abuse with infliction of great bodily injury (count 3: § 368, subd. (b)(1), hereafter § 368(b)(1), (2)); (4) first degree burglary (count 4: § 459); and (5) conspiracy to commit first degree robbery and first degree burglary (§§ 182, subd. (a)(1), 211, 459).[1] With respect to the count 3 elder abuse conviction, the jury found true an enhancement allegation that the victim was 69 years old and suffered great bodily injury (§§ 368, subd. (b)(2) & 12022.7). With respect to the count 5 conspiracy conviction, the jury found that at least one member of the conspiracy[2] committed at least one of the following overt acts: Alonzo called a tow truck driver; the driver, Spiegl, was tied up; and money and property were taken from Spiegl. At the sentencing hearing, the court first denied Alonzo's motion for new trial, which was based on her claim (discussed more fully, post) that the jury had committed misconduct during deliberations. The court found that any jury misconduct was harmless. The court then sentenced her to an aggregate prison term of life without the possibility of parole plus eight years. |
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