People v. Valenzuela

• Decision Date: 20 April 1982
• Docket Number: Cr. 13209
• Citation: 182 Cal.Rptr. 160,130 Cal.App.3d 903
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Maria Suarez VALENZUELA, Defendant and Appellant.

Page 160

182 Cal.Rptr. 160

130 Cal.App.3d 903

The PEOPLE, Plaintiff and Respondent, v. Maria Suarez VALENZUELA, Defendant and Appellant.

Cr. 13209.

Court of Appeal, Fourth District, Division 1, California.

April 20, 1982.

Hearing Granted June 16, 1982.

Quin A. Denvir, State Public Defender, and Jeffrey J. Stuetz, Deputy State Public Defender, and Gary Nelson, Panel Atty., San Diego, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

Maria Valenzuela appeals from a judgment of conviction on one count of robbery (Pen.Code, § 211), alleging that the jury was inadequately instructed on the necessary intent for her conviction on an aiding and abetting theory, and that the evidence is insufficient to support her conviction. She also contends instructional error occurred on her co-defendant's intoxication defense and on lesser included offense theories. Error is also claimed in the trial court's denial of her severance motion and in sentencing. We find no error save in sentencing.

Facts

Maria Uribe and her week-old son lived in a two-room apartment in San Ysidro. Uribe had just put her son back to bed after feeding him when Patricia Hinojosa (appellant Valenzuela's co-defendant) came to her door at about 4:30 a. m. and asked if "Guero" or "Wetto" was there. ¹ Uribe, who did not know Hinojosa, answered that no one by that name lived there, and Hinojosa left, returning 15 minutes later with a request to use the bathroom. Uribe admitted her, leaving the front door ajar. Five minutes later, Valenzuela, Hinojosa's roommate appeared at the door dressed in a robe and pajamas and walked in, asking for "Pattie." Uribe answered that she was in the bathroom, and Valenzuela also went into the bathroom for a few minutes. She then came back out and sat down on the couch. Uribe had been walking back and forth in the apartment but then sat near Valenzuela on a chair, and the two started to talk about their children, as each had recently had a baby. Hinojosa emerged from the bathroom and appeared to be angry. She pulled a gun from her waistband, swung it around, and demanded to know where "Wetto" was, as he owed her money. Uribe again said he was not there and Hinojosa asked if she could look around for him, and did so, looking in the bedroom and closets after she had put the gun back in her waistband. She also unplugged the phone. Hinojosa appeared to be intoxicated; her speech was slurred and she held onto the television stand rail for support. Hinojosa picked up several items from the bedroom, including a jacket, bracelet, hair dryer, wallet and keys; Uribe repeatedly told her not to take her things. Meanwhile Valenzuela kept saying to Hinojosa, "Let's get out of here," "Let's leave," and other more profane expressions indicating her desire that they depart. Uribe was asked at trial if she was fearful of Valenzuela, and she answered, "I didn't trust her. I was scared," but said that Valenzuela had not threatened her. Valenzuela was present and could see and hear when Hinojosa waived the gun and threatened Uribe and picked up "collected" items of Uribe's property.

Hinojosa, swinging while holding onto the television rail, told Valenzuela she was mad, that "We need the money." Uribe then unplugged the television set for Valenzuela who carried it out the door. Uribe did not try to stop Valenzuela. "She took it." She explained, "Hey, if it took two guys to bring it up, and I saw her carry it down, I wasn't about to stop her."

As Valenzuela left she told Uribe the television would be returned to her. A minute later, Hinojosa also left with the seized articles. The whole episode had lasted about an hour. Uribe immediately called the police.

Valenzuela was identified from a photo lineup and arrested at the apartment shared with Hinojosa. She admitted to the police she had been at Uribe's apartment and had carried the television set from the apartment. She admitted she knew "Wetto" did not live at Uribe's apartment. Hinojosa also made statements to police about her involvement in the incident (see infra). The stolen hair dryer was recovered from the shared apartment, but Uribe's television was never returned.

Valenzuela's motion to sever her trial from Hinojosa's was denied and a joint trial followed. Valenzuela did not testify on her own behalf nor did she present other defense evidence. At the close of the prosecution's case, her motion for acquittal on both counts was denied. Hinojosa testified in her own defense, relating that she had imbibed alcohol and marijuana several hours before arriving at Uribe's; Valenzuela had a few drinks with her, but did not become intoxicated.

The prosecution's theory at trial was that Valenzuela had aided and abetted Hinojosa in the commission of a robbery. Accordingly, the jury was instructed under CALJIC No. 3.01 that:

"A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.

"Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.

"Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."

The jury also received a modified CALJIC No. 3.00 instruction defining principals to a crime:

"The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof include:

"1. Those who directly and actively commit or attempt to commit the act constituting the crime, or

"2. Those who, with knowledge of the unlawful purpose of the one who does directly and actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission ...."

Valenzuela's counsel's closing argument analyzing the prosecution evidence addressed the issue of his client's intent as follows:

"Certainly there was no intent to specifically deprive. That television set was moved in an effort to try to get Miss Hinojosa to leave and for no other reason.... [I] think the evidence certainly indicates she came up there for the purpose of getting Miss Hinojosa and leaving. And it took her some time to convince Miss Hinojosa to leave but she ultimately did.... Well, in this case ... Miss Valenzuela is not directly or indirectly attempting to commit a crime, any crime. She's encouraging Miss Hinojosa to leave and discouraging her from doing anything wrong.... We have Miss Valenzuela trying to discourage Miss Hinojosa from doing anything and trying to get her to leave." (Italics added.)

The trial court told the jury each defendant could be convicted of either a robbery or a burglary, but not both. ² During deliberation the jury asked the court for clarification of the instructions on culpability of an aider and abettor and was reinstructed on these matters. The jury returned verdicts of guilty as to each defendant on the robbery counts.

Discussion

I.

Valenzuela contends that instructional error here allowed the jury to convict her of robbery without finding that she intentionally aided and abetted Hinojosa in the commission of the robbery. (People v. Yarber, 90 Cal.App.3d 895, 153 Cal.Rptr. 875.) Her trial and appellate theory was that her admitted taking of the television from Uribe's apartment was not robbery or theft but instead an attempt to defuse a volatile situation and get the intoxicated Hinojosa away from the scene.

In Yarber, supra, the court held that it was prejudicial error for the trial court to fail to instruct the jury that Bonnie Sue Yarber had aided and abetted the commission by her husband, appellant Wendol Yarber, of the crime of oral copulation of a minor-third person if, with knowledge of Wendol's unlawful purpose, she had intentionally aided or promoted by her act or advice the commission of that crime. The "peculiar facts" of that case (id., 90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875) revealed that there was "room for doubt" (ibid. ) whether the act (i.e., her own voluntary act of oral copulation of Wendol in the minor's presence) by which Bonnie had "aided or promoted" Wendol's crime was intended by her to promote Wendol's crime, or whether it was performed for her own purposes or gratification. In its analysis of these facts, the court commented:

"The facts of this case present the unusual situation in which the liability of an aider and abettor [Bonnie] depends not on her aiding by encouraging the perpetrator of the crime but on her aiding the perpetrator by encouraging a third party, who could not be liable either as a perpetrator or as an aider and abettor, to engage in an act in violation of the law." (People v. Yarber, 90 Cal.App.3d at p. 910, 153 Cal.Rptr. 875.)

It can readily be seen that this factual matrix (as the Yarber court admitted) " 'seems to go to the limit of the law.' " (Id., at p. 911, 153 Cal.Rptr. 875, quoting Williams, Criminal Law (2d ed. 1961) § 121, p. 356.) Such unusual facts offer no precedential value to the Valenzuela-Hinojosa-Uribe situation. It is difficult to conceive of an intent motivating Valenzuela's carrying the television out of Uribe's house, distinct from her purpose of helping Hinojosa to rob Uribe of her property. The Yarber rule is simply not applicable to the facts of this case.

Valenzuela argues she may have committed the acts which led to her conviction, but that in her heart of hearts she did not intend to aid and abet Hinojosa. This argument failed to persuade the jury. Counsel argued, essentially, the prosecution's evidence was subject to two inferences as to...