Opinion
H024950.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. GAIL JEANNINE BERNARD, Defendant and Appellant.
A jury found defendant Gail Jeannine Bernard guilty of first degree robbery in an inhabited place while voluntarily acting in concert with two or more persons (Pen. Code, § 213, subd. (a)(1)(A)). The jury found true an allegation that the victim of the offense was over the age of 65 (§ 667.9, subd. (a)). Defendant was sentenced to seven years in state prison. On appeal defendant contends at least three people must enter the inhabited place for the substantive offense to be committed and that, therefore, there was insufficient evidence to convict her for the "acting in concert" version of first degree burglary. She also contends the trial court erred in instructing the jury on the senior citizen age enhancement.
All subsequent statutory references are to the Penal Code unless otherwise specified.
I. Facts
On October 1, 2001, 77-year-old Elizabeth Westmoreland was robbed in her San Jose home. It was dark both outside and inside the house when she left her bed and went to investigate the sound of glass breaking in her kitchen. There, she was confronted by two people who were wearing sweatshirts with hoods that partially covered their faces. One put a pistol in Westmorelands face and told her to lie down. When she refused, the two struggled with her and moved her into the living room. Westmoreland was knocked down and hit with a gun two or three times. During the struggle, Westmoreland removed the hood from one of the two but could not tell if the person was male or female, and she never got a good look at either of her assailants.
The two individuals tied Westmoreland with twine and a telephone cord and removed a small purse from her "bosom area." They also took Westmorelands larger purse from behind the couch. That two purses contained Westmorelands identification, cash, and credit cards. Westmoreland estimated the robbers took approximately $2,500 in cash from her. After the robbers ran from the house, Westmoreland was able to free herself. She then went next door to a neighbors house.
Westmoreland told law enforcement that the robbers appeared to know where she kept her money and that she suspected two women, Deborah Yrigollen and Elizabeth Villagomez, may have been involved. Approximately two weeks before the burglary, Westmoreland had asked Yrigollen and Villagomez to stay with her to help care for Westmorelands 85-year-old sister. Both women knew where Westmoreland kept her money, and Villagomerz had gone with Westmoreland to the bank. A day or two before the robbery, Westmoreland had asked Yrigollen and Villagomez to leave because she suspected them of stealing from her.
After Westmoreland provided the names of the two women she suspected were involved in the robbery, detectives went to the home of Alex Herrera, because that was one of Yrigollens last know addresses. When contacted, Herrera told the detectives that Yrigollen and defendant Bernard had come by and awakened him at 6:30 a.m. that day. At that time, Yrigollen told Herrera "they" needed some twine or rope or duct tape to "[t]ie some stuff in the van or something." Yrigollen took several items, including a "four to five foot piece of duct tape" and some beige colored twine. Herrera kept rolls of telephone cord in the same drawer where he kept his duct tape and twine. He testified that he did not now recall defendant Bernard being at his home that morning, but he acknowledged having told the detectives that both she and Yrigollen had been there when he was awakened that morning. Detective Perea testified that Herrera said defendant was with Yrigollen when she asked for the tape.
After speaking with Herrera, the police went to defendants address where they found defendant, Yrigollen, Villagomez, and defendants roommate, Alicia Garcia. Inside the van parked directly in front of defendants residence, the police found duct tape and a sweatshirt They found $200 and two pellet guns in a drawer in defendants bedroom, and they found $885 on Garcia.
Villagomez testified at defendants trial. She admitted she had pled guilty and had been sentenced for her involvement in the robbery. Villagomez was acquainted with defendant through Yrigollen. Yrigollen and Villagomez had been staying with defendant and Garcia for a few nights before the robbery after they had stopped living with Westmoreland because there had been an argument. At some point, the group decided they were going to rob Westmoreland. Villagomez admitted she knew when Westmoreland collected rent money and that she carried money in her bra. Villagomez told the police that she, Yrigollen, Jesus, and defendant Bernard drove to the location of the robbery. At trial, Villagomez testified that Yrigollen was to stand outside to keep the dog from barking while Jesus and Bernard went inside because the dog knew Yrigollens scent. Villagomez told the police that defendant Bernard and Jesus went into Westmorelands house to perform the robbery and that she saw defendant Bernard emerge from Westmorelands bedroom. After the robbery, the group split up the money at defendant Bernards house. Villagomez told the police that defendant Bernard got approximately $900; at trial, she said Bernard got much less than that and that she only got it because they were staying at her house. Villagomez and Garcia threw Westmorelands property in a dumpster. Villagomez showed the police the location of the dumpster, and the police recovered Westmorelands purse, credit cards, and cash.
During an interview with a San Jose robbery detective, defendant Bernard admitted the robbery was a "planned event." She would not say who came up with the idea, but she admitted that she and another individual named "Jessie" or "Jesus" had gone into Westmorelands house and that Jesus or Jessie had gotten into an argument with Westmoreland and had hit Westmoreland and fought with her. Bernard said Jesus or Jessie was a friend of Yrigollens. Bernard admitted that she had received $500 from the robbery.
Detective Perea testified in rebuttal that Villagomez had told him the robbery had been "planned" and that defendant and Jesus had gone into the residence while Vrigollen had waited in the yard to keep the dog quiet.
II. Discussion
A. Sufficiency of the Evidence of Acting in Concert
Defendant contends that, "[a]s a matter of law, there was insufficient evidence to convict and sentence [her] for the `acting in concert version of first degree robbery (§ 213, subd. (a)(1)(A)." (Capitalization and emphasis omitted.) Specifically, she argues that robbery while "acting in concert" requires at least three persons enter the victims house and that, since the evidence showed that only two people entered Westmorelands house, she was not lawfully convicted of section 213, subdivision (a)(1)(A).
Section 213 provides, in pertinent part, as follows: "(a) Robbery is punishable as follows: [¶] (1) Robbery of the first degree is punishable as follows: [¶] (A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, . . . by imprisonment in the state prison for three, six, or nine years."
Pursuant to CALJIC No. 9.42.1, the jury was instructed that, in the context of section 213(a)(1)(A), "[t]he term acting in concert means two or more other persons acting together in a group crime, and includes not only those who personally engaged in the act or acts constituting the crime, but also those who aid and abet a person in accomplishing it. However, when the crime charged is robbery in concert, there must be at least three persons, including any defendant, acting in concert. To establish a defendant acted in concert with other persons, it is not necessary to prove there was any prearrangement, planning, or scheme."
"The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citation.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Flores (2003) 30 Cal.4th 1059, 1063.)
The punctuation, grammar, and syntax of the statute make the statutory language of section 213(a)(1)(A) clear. The language is susceptible of only one reasonable interpretation. The use of the singular form of the word "defendant" and the corresponding verb "commits" reveals that the statute deals with the punishment of a single defendant. If that single defendant, here defendant Bernard, commits first degree robbery within an inhabited dwelling house while voluntarily acting in concert with two or more other persons, that defendant is punishable by imprisonment in the state prison for three, six, or nine years. Nothing in the statutory language of section 213(a)(1)(A) suggests that the other two or more persons acting in concert with the defendant must have entered the inhabited dwelling.
The current subdivision (a)(1) of section 213 was substituted for the former subdivision (a)(1) in 1994. The substituted language was added to section 213 by Assembly Bill 779. Pursuant to defendants request for judicial notice, on May 16, 2003, we took judicial notice of a portion of the legislative history of AB 779. On our own motion, we have taken judicial notice of the entire legislative history of Assembly Bill 779. (Stats. 1994 ch. 789 § 1 (AB 779).) We note that when the bill text was first introduced on February 24, 1993, it set forth a "new crime" of "home invasion" and provided that "it is the crime of home invasion for a person to enter specified places by force or violence . . . with the intent to intimidate or harm any person therein while acting in concert with two ore more other persons actually present in the same place where the person or one of the persons acting in concert with that person threatens to inflict or does inflict great bodily injury on a person who is not a principal and who is actually present in the same place." (AB 779, Bill Text introduced on February 24, 1993.) We simply note that the "actually present in the same place" language does not appear in section 213, subdivision (a)(1)(A).
B. Instruction on Age of Victim Enhancement
The senior citizen enhancement contained in section 667.9 includes a requirement that the victims age (65 years of age or older) must be "known or reasonably should be known to the person committing the crime." (§ 667.9, subd. (a).) In its instructions to the jury, the trial court read the instruction on the enhancement twice in succession. The first time, the trial court included the knowledge requirement, instructing the jury that it was alleged that the condition that the victim was age 65 or older "was known or reasonably should have been known to the defendant." The second time the court read the instruction, it did not include the knowledge requirement in the age enhancement allegation. Citing Francis v. Franklin (1985) 471 U.S. 307, 322, defendant contends that, "[b]ecause there is no way of knowing which version the jury relied upon in reaching its verdict, error must be found."
In deciding whether instructional error occurred, we assume jurors are intelligent persons capable of understanding, correlating, and following all instructions. (People v. Mills (1991) 1 Cal.App.4th 898, 918.) In that context, we consider whether it is reasonably likely that the trial courts instructions caused the jury to misapply the law. (Estelle v. McGuire (1991) 502 U.S. 62, 72, and fn. 4; Boyde v. California (1990) 494 U.S. 370, 380; People v. Cain (1995) 10 Cal.4th 1, 36.) The instruction "`may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." (Estelle v. McGuire, supra, 502 U.S. at p. 72.)
In this case, the jury received a written copy of the jury instructions. Each juror had a copy of the instruction. The written instructions given to the jury correctly told the jury that it "is alleged" that at the time of the charged robbery, the defendant "committed such crime against a person 65 years of age or older and that condition was known or reasonably should have been known to the defendant. [¶] If you find the defendant guilty of the crime charged, you must determine whether or not the truth of this allegation has been proved." The written instructions also included the second version of the instruction that omitted the "known or reasonably should have been known" knowledge requirement. However, the jury was told that it would be asked to "include a special finding on that question, using a form that will be supplied to you." The relevant verdict form contained the appropriate "known or reasonably should have been known" language. When asked to read the verdict, the clerk read that the jury found the degree of the robbery to be in the first degree. She then read the following jurys finding on the age enhancement: "We further find the allegation of the victim of the offense charged above, Elizabeth Westmoreland, was 65 years of age and [sic] older at the time of the offense and the Defendant Gail Jeannine Bernard knew and [sic] reasonably should have known that the victim was 65 years of age and [ sic] older within the meaning of Penal Code Section 667.9 (a) to be true."
Judging the claimed error within the context of the instructions as a whole, the trial record, the specific finding made by the jury on the age enhancement, and the fact the jury sought no clarification of the instructions on the age enhancement, we are convinced it is not reasonably likely that the jury was misled by the jury instructions provided on the age enhancement. (Estelle v. McGuire, supra, 502 U.S. at p. 72 and fn. 4; c.f. People v. Barrera (1993) 14 Cal.App.4th 1555, 1572 [rejecting challenge to CALJIC No. 9.90 where defendant provided no evidence jury was confused over words "cruel or extreme pain and suffering" and court found no evidence of confusion in record].) Unlike the situation the United States Supreme Court faced in Francis v. Franklin, supra, 471 U.S. 307, where "[n]othing in [the] specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other" (id. at p. 322), here, the verdict form made clear that the instruction that contained the "known or reasonably should have been known" knowledge requirement carried more weight than the parallel instruction which omitted the knowledge requirement.
III. Disposition
The judgment is affirmed.
We concur: Elia, Acting P.J., Wunderlich, J.