People v. Harden (110 Cal. App. 4th 848, 2003)

Opinion

McDONALD, J.

Yolanda Fay Harden appeals a judgment entered following her jury convictions of murder (Pen. Code, § 187, subd. (a)), first degree residential robbery (§§ 211, 212.5, subd. (a)), first degree residential burglary (§§ 459, 460), infliction of cruelty on an elderly person (§ 368, subd. (b)(1)), and escape without force from jail while felony charges were pending (§ 4532, subd. (b)). The jury also found true special circumstance allegations that the murder was committed in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and that the murder was committed in the commission of a burglary (§ 190.2, subd. (a)(17)(G)). On appeal, Harden contends the trial court erred by instructing with: (1) a modified form of CALJIC No. 2.15 on possession of stolen property; (2) modified forms of CALJIC No. 8.81.17 that omitted paragraph 2 of the standard instruction on felony-murder special circumstances; and (3) a modified form of CALJIC No. 8.80.1 on special circumstances.

FACTUAL AND PROCEDURAL BACKGROUND

On October 2, 2000, Alfred and Marion Polchow, an elderly married couple, lived in a duplex in a senior retirement community. Signs posted at the entrance to the retirement community identified it as for persons 55 years of age or older. While the Polchows were in bed that morning, their doorbell rang. Alfred answered the door and returned to the bedroom, informing Marion that a woman was at the door who wanted to use their telephone to call a taxi. Alfred allowed the woman to use their telephone. Alfred returned to the bedroom again, appeared to be upset, and then went back to the living room.

Marion fell back asleep and when she awakened she saw a woman standing in her bedroom looking at jewelry and credit cards that the Polchows kept on top of their dresser. The woman was very dark-complexioned, had her hair pulled back, and wore a white T-shirt that did not have a high neckline. The woman then returned to the living room. Marion later saw the woman leave the house through the back door.

Marion went into the living room to see what happened to Alfred. She found him “curled up” on the sofa. He was not awake. Taxi driver Gerard Kelly then appeared at the front door and told Marion someone had called for a taxi. Kelly arrived about 10 or 15 minutes after he had been dispatched to the Polchows’ address. Marion told Kelly that maybe the woman who had been there had called for a taxi. From outside the screen door, Kelly saw Alfred slip from the sofa to the floor as Marion tried to get him to respond. Marion asked Kelly to call for an ambulance, but he suggested that she make the call. At 10:56 a.m. Marion called 911 for assistance.

Oceanside Police Officer Richard Irwin arrived at the Polchows’ home about 11:04 a.m. Alfred was dead. Marion appeared confused and delusional. She told Irwin she saw a woman enter and leave her bedroom. After speaking to Alfred’s physician and learning of his heart condition, Irwin initially believed Alfred died of natural causes. When Irwin returned to the Polchows’ home the following day, Marion appeared more coherent. She told him some of her rings were missing and that someone had fraudulently attempted to use one of their bank cards. Irwin no longer believed Alfred died of natural causes. Costume jewelry that Marion kept -in the kitchen was missing.

An autopsy showed Alfred died of strangulation. Petechial hemorrhaging was found on his face and in the conjunctivae of his eyes. His head was red. There was a white line of demarcation around Alfred’s lower neck, consistent with a ligature being placed across his neck. There were abrasions near the white line. There were curvilinear abrasions on his cheek that were consistent with fingernail marks. The upper left horn of his thyroid cartilage in his neck was fractured, which was consistent with strangulation. He also sustained other injuries that probably were caused by blunt force or a fall.

Marion’s Visa check card was missing from her home. At 11:32 a.m. on October 2, someone made three attempts to use that card to withdraw $100 from an automated teller machine (ATM) at a gasoline station in Vista. Those attempts were unsuccessful because the correct personal identification number (PIN) was not entered. Later that day, two unsuccessful attempts were made to withdraw $80 from an ATM using that card. Also, there were three unsuccessful attempts at an ATM to borrow money with that card. Marion’s missing card was successfully used to make eight telephone calls. The first call was made at 12:02 p.m. on October 2. The first two calls were made to a telephone number at Camp Pendleton barracks at which Markco Whipple resided. Harden was dating Whipple at the time. The other six calls were made from a telephone number belonging to Alysia Everett. Harden was temporarily staying at Everett’s Vista apartment at the time. The last five calls were made to area code 925, which includes Concord and Pittsburgh, California, an area in which Harden had relatives and had previously resided. Some of those calls were made to Harden’s relatives. Everett did not know anyone who lived in the 925 area code.

At 1:35 p.m. on October 2, two of Marion’s missing rings were pawned for $75 each at an Oceanside pawn shop. The person who pawned those rings presented Harden’s California driver’s license. The person’s thumbprints on the two pawn slips matched Harden’s thumbprints.

Two residents of the senior retirement community, Lillian Frick and Nancy Porter, identified Harden for police as the woman they saw near the Polchows’ home on October 2.

Police searched the home of Martha Justice, Harden’s mother. Justice showed police Harden’s clothing, which included a black jacket with three white stripes on its sleeve and blue nylon sweat pants with a white stripe.

An information charged Harden with murder and four other offenses and alleged two felony-murder special circumstances in the commission of the murder. At trial Frick testified that about 9:00 or 9:30 a.m. on October 2, 2000, she saw a woman walking in the retirement community toward the Polchows’ home. She was wearing dark clothing and her hair was pulled straight back. The woman had a piece of lined paper in her hand. She was not carrying a purse or plastic bag. The woman told Frick she was a caregiver and was looking for a certain address. Frick walked to another home in the retirement community, where she walked a dog. Afterward, about 10:00 a.m. or later, Frick was walking back when she saw a truck drive by her with the woman she had seen earlier sitting in the passenger seat. As the truck drove by, the woman stared at Frick. The driver of the truck was male. When Frick saw a photograph of Harden in the newspaper, she contacted police regarding her October 2 observations. At trial, Frick testified she was 75 to 80 percent certain that Harden was the woman she saw that day.

Porter testified that about midmoming on October 2, 2000, she saw a dark-complexioned woman standing on a street comer in the retirement community near her home. The woman appeared to be “hanging out” and agitated. The woman was “very busty” and was wearing a white T-shirt with a lower neckline. Her hair was pulled back very tightly. She was wearing dark navy blue jogging-style pants with a white stripe on the side. She was holding a dark jacket with some white on it that appeared to match the pants. The woman was holding a plastic grocery bag that seemed to have something heavy at the bottom. Porter went to answer her telephone and when she returned after a minute or two, the woman was gone. Shortly thereafter, Porter saw a taxi drive by her home. Porter wrote notes on what she observed and later told a neighborhood watch representative about her observations. At trial, Porter had no doubt that Harden was the woman she observed on October 2. Because Porter was afraid Harden had seen her and knew where she lived, Porter told police when they first contacted her that she could not identify anyone in a photographic lineup that included Harden’s photograph. However, at trial she testified she had recognized Harden’s photograph in that lineup. Porter later told her husband and a friend that she had recognized Harden’s photograph but told the police she could not identify anyone. When the police subsequently contacted Porter, she saw Harden’s photograph in the officer’s notebook, took it out of the notebook, and told the officer that it depicted the woman she saw.

Kelly testified he worked for Courtesy Cab Company, which operated about 10 taxis. On September 20, 2000 (about two weeks before the incident), Kelly picked up a woman at the address of Everett’s Vista apartment complex. While transporting that woman, he was directed to and stopped at an address of an apartment complex where Harden had previously lived.

In July 1998 Harden was working in Texas for a company that provided care for the elderly. Harden provided care for Ethel Woollard’s elderly neighbor. On the morning of July 23, 1998, Harden knocked on Woollard’s door, told her she had run out of gas, and asked to use Woollard’s telephone to call her boyfriend. As Harden used Woollard’s telephone, a television service man arrived. Harden asked to use Woollard’s bathroom. When the service man left, Harden conversed with Woollard for a while. About 20 to 25 minutes after Harden left Woollard’s home, Woollard received a call from a check-cashing company, informing her that Harden had attempted to cash Wollard’s check for $395 payable to Harden for housekeeping services. Woollard had not written that check or any check to Harden. Woollard then discovered that blank checks were missing from her purse.

On April 7, 2001, while Harden was in custody at the Las Colinas detention facility, she began suffering abdominal pains related to her pregnancy. She was transported by the sheriff’s department to Alvarado Hospital for treatment. In the afternoon, private security took over the duty of guarding Harden. About 6:00 a.m. the next morning, the guard released Harden from her restraints and allowed her to use the adjoining bathroom. Harden escaped, apparently by leaving the bathroom through another door that connected the bathroom to an adjacent room. With the assistance of Justice (Harden’s mother), police later apprehended Harden at a gasoline station.

Following the jury’s convictions of Harden on all counts and true findings on all special circumstance and other allegations, the trial court sentenced her to an indeterminate term of life in prison without the possibility of parole for first degree murder with special circumstances, to be served consecutive to an aggregate term of six years four months.

Harden timely filed a notice of appeal.

DISCUSSION

I

Modified CALJIC No. 2.15 on Possession of Stolen Property

Harden contends the trial court erred by instructing the jury on possession of stolen property with a modified form of CALJIC No. 2.15.

A

Count 1 of the information charged Harden with the unlawful murder of Alfred (§ 187, subd. (a)). The allegations in count 1 of the information (as modified by the jury instructions) alleged that Harden’s murder of Alfred was committed while she was engaged in or during the course of the commission or attempted commission of robbery and burglary (§ 190.2, subd. (a)(17)). Count 2 charged Harden with the first degree residential robbery of Alfred (§§ 211, 212.5, subd. (a)). Count 3 charged Harden with first degree residential burglary (§§ 459, 460).

Overruling Harden’s objection, the trial court instructed with the following modified form of CALJIC No. 2.15: “If you find that the defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes of robbery and burglary, as alleged in counts 2 and 3 of the information, and that the allegations alleged in count 1 of the information, that the murder of Alfred Polchow was committed by the defendant during the commission of the crimes of robbery and burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt, [f] As corroboration, you may consider the attributes of possession—time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, her false or contradictory statements, if any, and other statements she may have made with reference to the property, a false account of how she acquired possession of the stolen property, any other evidence which tends to connect the defendant with the crime charged.” (Italics added.) In discussing with counsel its modified form of CALJIC No. 2.15, the trial court stated CALJIC No. 2.15 should not be given regarding the charge of murder, but should be given regarding the special circumstance allegations relating to robbery and burglary.

B

Harden concedes the trial court did not err by giving CALJIC No. 2.15 regarding the charges of robbery and burglary. Appellate courts have concluded CALJIC No. 2.15 may properly be given regarding charges of robbery, burglary and other theft-related offenses in cases in which there is sufficient evidence to support findings the defendants possessed recently stolen property. (People v. Prieto (2003) 30 Cal.4th 226, 249 [133 Cal.Rptr.2d 18, 66 P.3d 1123] [“[w]e have approved the use of CALJIC No. 2.15 with respect to theft offenses”]; People v. Smithey (1999) 20 Cal.4th 936, 976-977 [86 Cal.Rptr.2d 243, 978 P.2d 1171]; People v. Holt (1997) 15 Cal.4th 619, 677 [63 Cal.Rptr.2d 782, 937 P.2d 213]; People v. Johnson (1993) 6 Cal.4th 1, 35-38 [23 Cal.Rptr.2d 593, 859 P.2d 673]; Barnes v. United States (1973) 412 U.S. 837, 843-844 [37 L.Ed.2d 380, 93 S.Ct. 2357]; People v. Barker (2001) 91 Cal.App.4th 1166, 1173-1175 [111 Cal.Rptr.2d 403]; People v. Gamble (1994) 22 Cal.App.4th 446, 452-455 [27 Cal.Rptr.2d 451]; People v. Anderson (1989) 210 Cal.App.3d 414, 420-432 [258 Cal.Rptr. 482].) In Barker, we noted CALJIC No. 2.15 generally “is a permissive, cautionary instruction which inures to a criminal defendant’s benefit by warning the jury not to infer guilt merely from a defendant’s conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendant’s guilt. [Citations.]” (Barker, supra, at p. 1174.)

Rather, Harden contends the trial court erred by modifying CALJIC No. 2.15 to add the reference to the special circumstance allegations related to the murder charge. She argues the court’s modification resulted in an improper pinpoint instruction on the special circumstance allegations that misled the jury regarding the prosecution’s burden of proof. We conclude the trial court did not err by modifying CALJIC No. 2.15 to include special circumstance allegations related to robbery and burglary.

Although the published cases to date have approved CALJIC No. 2.15 for use regarding theft-related offenses, there appears to be no valid reason to preclude its use regarding theft-related allegations. One of the elements of a section 190.2, subdivision (a)(17) special circumstance allegation is the commission (or attempted commission) of a robbery, burglary, or other listed felony offense. Because CALJIC No. 2.15 may properly be given as a cautionary instruction regarding the offenses of robbery and burglary (People v. Barker, supra, 91 Cal.App.4th at p. 1174), it logically also may properly be given as a cautionary instruction regarding allegations that include as elements the offenses of robbery or burglary. If properly worded, the instruction would inure to the defendant’s benefit because it would warn the jury not to infer the existence of the element of robbery or burglary of a special circumstance allegation from the defendant’s conscious possession of recently stolen property, without corroborating evidence. (Cf. Barker, supra, at p. 1174.) Contrary to Harden’s assertion, that instruction would not mislead the jury regarding the prosecution’s burden of proof.

Courts have consistently concluded that CALJIC No. 2.15, when given with other instructions on the elements of offenses and the burden of proof, does not alter the prosecution’s burden to prove a defendant’s guilt beyond a reasonable doubt or otherwise violate a defendant’s constitutional rights. (People v. Prieto, supra, 30 Cal.4th at p. 248; People v. Smithey, supra, 20 Cal.4th at pp. 976-979; People v. Holt, supra, 15 Cal.4th at p. 677; People v. Barker, supra, 91 Cal.App.4th at p. 1174 [CALJIC No. 2.15’s “inference of guilt has been held not to relieve the prosecution of its burden of establishing guilt beyond a reasonable doubt”]; People v. Gamble, supra, 22 Cal.App.4th at pp. 454-455 [CALJIC No. 2.15’s “permissive inference does not shift the prosecution’s burden of proof’]; People v. Anderson, supra, 210 Cal.App.3d at pp. 427, 430-432 [CALJIC No. 2.15’s “permissive inference empowers the jury to credit or reject the inference based on its evaluation of the evidence, and therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt”].)

As the California Supreme Court recently stated in Prieto: “CALJIC No. 2.15 [does] not directly or indirectly address the burden of proof, and nothing in the instruction absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt” (People v. Prieto, supra, 30 Cal.4th at p. 248.) There does not appear to be any logical reason to reach a different conclusion where an allegation, rather than an offense, is involved. Furthermore, CALJIC No. 2.15 must be interpreted in the context of all of the instructions given the jury. In this case, as in Holt, “[t]he jury was advised that the instructions were to be considered as a whole and each in the light of all of the others. It was also instructed on all of the required elements of burglary and robbery and was expressly told that in order to prove those crimes, each of the elements must be proved.” (People v. Holt, supra, 15 Cal.4th at p. 677.) Also in this case, the jury was instructed on all of the required elements of the special circumstance allegations. It was further instructed with CALJIC No. 8.80.1: “The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true.”

Therefore, similar to the court’s conclusion in Holt, “[w]e see no possibility that giving the jury the additional admonition that it could not rely solely on evidence that defendant possessed recently stolen property would be understood by the jury as suggesting that it need not find all of the statutory elements of [the special circumstance allegations] had been proven beyond a reasonable doubt.” (People v. Holt, supra, 15 Cal.4th at p. 677; People v. Smithey, supra, 20 Cal.4th at pp. 978-979; cf. People v. Anderson, supra, 210 Cal.App.3d at pp. 429-430 [CALJIC No. 2.15, “both on its face and when read in conjunction with the remaining instructions, sufficiently informed the jury of the permissive nature of the inference, and did not impose any constitutionally suspect presumption”].) Because of those other instructions, “there is ‘no possibility’ CALJIC No. 2.15 reduced the prosecution’s burden of proof in this case. [Citation.]” (People v. Prieto, supra, 30 Cal.4th at p. 248.)

Citing Barker, Harden also asserts the trial court’s modified version of CALJIC No. 2.15 misled the jury regarding the felony-murder charge. In Barker, the trial court modified CALJIC No. 2.15 to include both murder and robbery as crimes to which its permissive inference could apply. (People v. Barker, supra, 91 Cal.App.4th at p. 1172.) We concluded the trial court erred by including the nontheft offense of murder in its modified CALJIC No. 2.15 instruction, reasoning: “Proof a defendant was in conscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed a murder to obtain the property.” (Barker, at p. 1176, fn. omitted.) In Prieto, the California Supreme Court recently approved our holding in Barker, stating: “[Application of CALJIC No. 2.15 to nontheft offenses like rape or murder” is improper. (People v. Prieto, supra, 30 Cal.4th at pp. 248-249.) However, in this case the trial court did not directly, or indirectly, include the offense of murder, whether under a theory of premeditated or felony murder, in its modified CALJIC No. 2.15 instruction. Rather, the trial court instructed that the CALJIC No. 2.15 permissive inference could apply only to “the crimes of robbery and burglary, as alleged in counts 2 and 3 of the information, and ... the allegations alleged in count 1 of the information, that the murder of Alfred Polchow was committed by the defendant during the commission of the crimes of robbery and burglary.” (Italics added.) Therefore, Barker and Prieto are inapposite and do not require a conclusion that the trial court in this case erred by giving its modified CALJIC No. 2.15 instruction. We do not believe, as Harden argues, that the jury naturally would believe CALJIC No. 2.15 applied to the charge of murder. Although CALJIC No. 2.15, as given by the trial court, included subsequent references to “the crime charged,” the jqry presumably would have inferred that phrase applied only to the charged crimes of robbery and burglary previously referred to and expressly included in its modified CALJIC No. 2.15 instruction and not to murder or any other charged crimes (i.e., infliction of cruelty on an elderly person, § 368, subd. (b)(1), or escape without force from jail while felony charges were pending, § 4532, subd. (b), not previously referred to or expressly included in that instruction. The trial court instructed the jury that it must follow the law the court stated to it and disregard any conflicting arguments made by the attorneys concerning the law. We presume the jury followed that instruction.

C

Assuming arguendo the trial court erred by instructing with its modified form of CALJIC No. 2.15, we nevertheless conclude any error was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243]. Although Harden argues we should apply the more stringent standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], we have previously concluded, and the California Supreme Court recently agreed, that the Watson standard applies when CALJIC No. 2.15 is erroneously given regarding nontheft offenses. (People v. Prieto, supra, 30 Cal.4th at p. 249; People v. Barker, supra, 91 Cal.App.4th at p. 1177; see also People v. Mendoza (2000) 24 Cal.4th 130, 177 [99 Cal.Rptr.2d 485, 6 P.3d 150].) The Watson standard provides that an error is harmless unless the appellant shows it is reasonably probable a result more favorable to the appellant would have been reached had the error not occurred. (Watson, supra, at p. 836.) Considering the entire record in this case, we conclude any error in the trial court’s modified form oí CALJIC No. 2.15 was harmless under the Watson standard. Porter was certain she saw Harden near the Polchows’ home about the time of the incident. Frick was 75 to 80 percent certain that it was Harden she saw about that time. Harden’s physical description and clothing matched that described by Marion as the woman she saw in her home. Harden apparently called for the taxi and had previously used the same small taxi company. Harden pawned some of Marion’s jewelry shortly after the incident. The jury could reasonably infer Harden made the telephone calls and attempted to otherwise use Marion’s bank card. Harden had previously worked as a caregiver and told Frick that morning that she was a caregiver looking for an address.

In 1998 Harden used a similar pretext of needing to make a telephone call to gain entry into an elderly person’s home and steal blank checks. The evidence supports the jury’s findings that Harden was guilty of murder, robbery and burglary and its true findings on the special circumstance allegations that the murder was committed by Harden during the course of the commission of the robbery and burglary. Furthermore, considering the trial court’s instructions as a whole, because the jury was informed of the elements required for those crimes and special circumstance allegations and of the requirement that those elements be proven by the prosecution beyond a reasonable doubt, the potential prejudicial impact of the modified form of CALJIC No. 2.15 was not significant. Therefore, it is not reasonably probable Harden would have obtained a more favorable verdict had CALJIC No. 2.15 been given only as to the crimes of robbery and burglary and not as to the special circumstance allegations. (People v. Watson, supra, 46 Cal.2d at p. 836.) Although Harden argues the evidence could have supported a finding that the male seen driving Harden from the scene committed the murder or was otherwise involved in the incident, that evidence is insufficient to show she would have received a more favorable result had the assumed instructional error not occurred.

II

Modified CALJIC No. 8.81.17 on Felony-Murder Special Circumstances

Harden contends the trial court erred by omitting paragraph 2 of the CALJIC No. 8.81.17 felony-murder special-circumstances instruction.

A

The trial court instructed on the special circumstance of felony murder committed during a robbery with the following modified form of CALJIC No. 8.81.17: “To find that the special circumstance, referred to in these instructions as murder in the commission of a robbery, is true, it must be proved that the murder was committed while the defendant was engaged in or during the commission or attempted commission by the defendant of robbery, in violation of Penal Code [s]ection 211. [