People v. Harden

• Decision Date: 21 July 2003
• Docket Number: No. D040210.,D040210.
• Citation: 2 Cal.Rptr.3d 105,110 Cal.App.4th 848
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Yolanda Fay HARDEN, Defendant and Appellant.

2 Cal.Rptr.3d 105

110 Cal.App.4th 848

The PEOPLE, Plaintiff and Respondent, v. Yolanda Fay HARDEN, Defendant and Appellant.

No. D040210.

Court of Appeal, Fourth District, Division 1.

July 21, 2003.

Certified for Partial Publication.¹ Review Denied Oct. 15, 2003.

David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Gary W. Schons, Assistant Attorneys General, Steven T. Oetting and Warren P. Robinson, Deputy Attorneys General, for Plaintiff and Respondent.

McDONALD, J.

Yolanda Fay Harden appeals a judgment entered following her jury convictions of murder (Pen.Code, § 187, subd. (a)),² 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.³ 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.⁴ 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 midmorning on October 2, 2000, she saw a dark-complexioned woman standing on a street corner 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.⁵ 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...