People v. Ferrell, B206803 (Cal. App. 10/28/2009)

• Decision Date: 28 October 2009
• Docket Number: B206803
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. VICTORIA JEAN FERRELL et al., Defendants and Appellants.

Page 1

THE PEOPLE, Plaintiff and Respondent, v. VICTORIA JEAN FERRELL et al., Defendants and Appellants.

B206803

Court of Appeals of California, Second Appellate District, Division Five

October 28, 2009

Not to be Published in the Official Reports

Appeal from a judgment of the Superior Court of Los Angeles County, No. NA075842, Charles Sheldon, Judge. Affirmed with modifications.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant, Victoria Ferrell.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant, Sandra Whitmus.

Lisa M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant, Shannon Plummer.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Defendants, Sandra Whitmus, Victoria Ferrell, and Shannon Plummer, appeal from various felony convictions arising out of their July 18, 2007 entry into an apartment rented by Brandy Hill. All defendants were convicted of: first degree burglary when an occupant of the residence is present (Pen. Code,¹ §§ 459, 667.5, subd. (c)(21)); battery with serious bodily injury (§ 243, subd. (d); and deadly weapon assault. (§ 245, subd. (a)(1).) Ms. Plummer was convicted of robbery. (§ 211.) Both Ms. Whitmus and Ms. Ferrell were convicted of witness intimidation. (§ 136.1, subd. (c)(1).) On appeal, defendants argue there was instructional and sentencing error. We affirm.

II. THE FACTS

A. Overview

For sufficiency of the evidence purposes, we review the testimony and exhibits, which we have examined, in a light most favorable to the judgments. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; People v. Elliot (2005) 37 Cal.4th 453, 466.) In assessing harmless error, we review all of the evidence. (Arizona v. Fulminante (1991) 499 U.S. 279, 307 [federal constitutional error]; People v. Breverman (1998) 19 Cal.4th 142, 178 [Cal. Const., art. VI, § 13 review].) Because many of the issues raised by the parties warrant harmless error analysis, we will set forth the evidence in some detail.

B. Prosecution Case

The prosecution case consisted of the testimony of four witnesses. The principal witness concerning the bulk of the counts was Ms. Hill. Ms. Hill lived in an apartment at 310 Lime Street in Long Beach. Defendants were all convicted of the first degree burglary of Ms. Hill's residence. Her boyfriend was Francisco Uribe. Prior to the July 18 incident, Ms. Hill had only met Ms. Ferrell probably two or three times. The meetings occurred at Ms. Hill's apartment. Likewise, Ms. Hill had met Ms. Plummer two or three times. Ms. Hill characterized Ms. Plummer as an acquaintance. Ms. Plummer introduced the codefendant, Steven Noel, as her boyfriend.

Ms. Hill had known Ms. Whitmus for 10 months prior to the July 18 incident. They met in a drug rehabilitation program. Ms. Hill gave a key to the 310 Lime Street apartment to Ms. Whitmus. According to Ms. Hill, this was because she was about to undergo surgery in Bakersfield and would stay with her parents while she recovered. Ms. Hill testified: "Prior to me going, I had asked [Ms. Whitmus] and her boyfriend if they would come and check on my apartment while I was gone. I was going to be gone for a week, I knew for sure, but maybe another week after, I did not know." Ms. Hill testified, "I asked her to check my apartment from time to time because I was never home." Once, Ms. Whitmus gave the rent check to the apartment manager. According to Ms. Hill, Ms. Whitmus could spend the night in the Lime Street apartment and they became good friends. But Ms. Hill denied they lived together.

Later, Ms. Hill became involved with her boyfriend, Francisco Uribe, and she was never home. Later Ms. Hill qualified her testimony about never being home and stated: she would be gone five days at a time; she would return to the Lime Street apartment for "like a day, eight hours . . ."; and then she would return to Mr. Uribe's Pico Rivera home. But Ms. Hill spent most of her time with Mr. Uribe at his Pico Rivera residence.

On July 16, 2007, Ms. Hill was in her apartment working on a transfer of funds. In making the transfer, Ms. Hill used her automatic teller machine "Check VISA" card. One hour after the transfer was made, Ms. Hill's check card was missing from her wallet. Present when Ms. Hill discovered the check card was missing were Ms. Ferrell, Ms. Plummer, and Mr. Noel. Ms. Hill then called the bank and cancelled the card.

While communicating with the bank, Ms. Hill received a telephone call from Ms. Whitmus. Ms. Whitmus's telephone call was placed while Ms. Hill was speaking with a bank representative. Thus, Ms. Hill did not immediately know of the telephone call but learned of it when she retrieved a voicemail. The voicemail recorded Ms. Whitmus stating, `"I don't know who you thing you're f-ing with, little girl, but I don't know what you're doing or what you think you're doing, but who the hell do you think you are putting a block on the phone.'" Ms. Whitmus ended the message by hanging up in mid-sentence. Ms. Hill did not know what Ms. Whitmus was talking about.

At 11:30 a.m. on July 18, Ms. Hill left a voicemail message for Ms. Whitmus. Ms. Hill described the voicemail message: "I told her that I had changed the locks on the door, that I put what belongings she had in my house outside. I told her she needed to come get her belongings. She knows why I am doing what I am doing. `My bank card is gone. I'm very upset with you. I don't want to argue about it right know. And when things are cooled down I will call you, and will talk to you. Please come get your things.'" Ms. Hill placed Ms. Whitmus's clothes and computer in a box in front of the Lime Street apartment. Ms. Hill testified only a "few clothes" were placed in a box or bag.

Two hours later, Ms. Hill was sleeping in her apartment with Mr. Uribe, her boyfriend. Ms. Hill was awakened by Ms. Whitmus, Ms. Ferrell, and Ms. Plummer who were all yelling. Ms. Hill then saw Ms. Whitmus forcing entry through a double paned window into the apartment. Ms. Hill testified: "I saw [Ms. Whitmus] kicking the window in. First, taking off the screen, like ripping it off basically and kicking in the window . . . with her foot." Ms. Hill testified they were also banging on her security screen on her front door. Both Ms. Whitmus and Ms. Plummer crawled through the window. Ms. Ferrell, who was pregnant at the time, was crouched down by the window yelling: `"Bitch, you need to come open this fucking door. Pregnant or not, I'm going to kick your ass, and I'll go to jail. I don't care." Ms. Plummer opened the front door in order to admit Ms. Ferrell who then entered the apartment.

Ms. Hill ordered Ms. Whitmus to leave. According to Ms. Hill, Ms. Whitmus was armed with a steak knife. Ms. Hill testified the steak knife was brandished within six inches of her throat. Ms. Whitmus was swearing at Ms. Hill as they struggled over a telephone. Eventually, the telephone was broken in half and thrown to the ground by Ms. Whitmus. During the incident, Ms. Hill saw a second knife on the floor next to Ms. Whitmus.

Ms. Hill ordered the three women to leave the apartment. Ms. Plummer then punched Ms. Hill in the mouth. This caused Ms. Hill to careen back into her bathroom where she testified the following occurred, "[Ms. Plummer] then grabs me by the head and hitting it into the towel bar in my bathroom." Then Ms. Ferrell joined with Ms. Plummer in hitting Ms. Hill who was bent over at the waist. A neighbor yelled: `"You guys need to get off her now and get out of here. The police are coming."` Yelling at Ms. Hill, the three assailants then left the apartment. Ms. Whitmus picked up a plastic bat and swung it at Ms. Hill's bookshelf, knocking it over. Ms. Plummer took Ms. Hill's purse. Ms. Hill then took the purse back and pushed Ms. Plummer out the front door. Ms. Hill's home telephone did not work and she ran to a nearby convenience store to summon the police. As she was running out of her apartment on July 18, Ms. Hill did not see Mr. Noel.

Ms. Hill placed a telephone call from 401 Atlantic Boulevard to the police and paramedics which we have heard. Ms. Hill identified Ms. Whitmus, Ms. Plummer, and Ms. Ferrell. Ms. Hill described Ms. Whitmus as an unwanted house guest. Ms. Hill said the three women had broken into her apartment through the front window and assaulted her. Ms. Hill also said she was bleeding and her teeth were "busted."

Ms. Hill ascertained that several items were missing. She discovered her watch, which had been on her wrist prior to the incident, was missing. Ms. Hill's wrist, where she wore the watch prior to the incident with the three women, was sore. Ms. Hill could not testify which of her three assailants took her watch. Also, one of Ms. Hill's cellular telephones was missing. A pocket knife belonging to Ms. Hill was likewise missing. The missing watch and knife were later returned by the police to Ms. Hill.

Ms. Hill sustained several injuries in the attack. Ms. Hills' mouth was swollen and her teeth had been "pushed back" in her words. Treated by a dentist, Ms. Hill was told her teeth were being pushed back in to her gums. In order to save her teeth, the dentist had to perform two root canal procedures. Another year's work remained to be done on Ms. Hill's teeth. Ms. Hill testified: "[The dentist] is going to have to crown them. Because as I age, they will turn more gray. Or he will do veneers. And after that, because my bite is off a bit and my teeth before were perfectly straight, I will have to have some orthodontist work done, braces or retainer." There was blood on the towel rack and floor in her bathroom. Photographs depicting...