Opinion
A jury found Joseph Monroe Leavel guilty of residential robbery (Pen. Code, § 211; count 2),
On appeal, Leavel contends the trial court erred by not appointing a second mental health professional under section 1027 to examine him with respect to his insanity defense; denying his motion for a mistrial after a sheriff’s deputy disclosed Leavel was living in a detention center when he was served with a search warrant for a DNA sample; and denying his motion to strike his prior strike convictions. He also challenges the sufficiency of the evidence to support the jury’s verdict on the kidnapping for robbery count. We affirm the judgment.
FACTUAL BACKGROUND
At 1:20 a.m. on July 22, 2005, 69-year-old Diann Panzera was in her home office.
Panzera froze and then began backing away. Leavel threatened Panzera, “Don’t scream or I’ll kill you.” He slapped his hand over her mouth, knocked her to the ground and landed on her, causing her to lose bowel control. Leavel said he would not rape or hurt Panzera if she cooperated with him. He got off of her and pulled her up. He hugged her and kissed her on the top of her head and began telling her about his “sad life.” Panzera got $70 from her purse and gave it to Leavel, and “he started snooping around” and took her cell phone and cigarettes.
Leavel told Panzera, “We’re going to smoke cigarettes.” Holding onto her arm and the back of her neck, he led her down the hallway looking for her bedroom. As they walked, Leavel continued telling Panzera about his “sad life.” Panzera was frightened and “in shock.” Leavel found the bedroom, where they smoked the cigarettes. He wiped his fingerprints from an ashtray with a tissue, stating, “I watch all those shows.”
After smoking, Leavel “started looking around and through things,” and he removed a loaded pistol from a nightstand drawer. He put it back, telling Panzera “he didn’t want to get caught with it.” He changed his mind, however, and took the gun. Leavel ordered Panzera to disconnect her phones and promise not to call the police.
Leavel then said he was hungry. He grabbed Panzera by the back of the neck and forced her into the kitchen. She gave him ham and a bottle of beer from the refrigerator. He began eating the ham, but ordered her to go into the bathroom and flush it down the toilet because it was too salty and he had high blood pressure. Leavel then took Panzera into her office where he “snooped around” and took a digital camera, a pen, and a towel.
Leavel next grabbed Panzera by the back of her neck and forced her outside with him where he retrieved his clothing and shoes. He then forced her back inside into the living room, where he got dressed. After dressing, he asked Panzera to hug and kiss him, which she refused to do. Leavel called someone from her cell phone, identified himself as “Joe,” and said, “I’ve got $50. Never mind how I got it. I earned it.”
Leavel placed all the items he had stolen on a table and “went out to the garage and stood there.” He came back inside, took all the items, and left the house at around 2:10 a.m. He threw the bottle of beer in the front yard. Panzera was afraid for her safety throughout the ordeal.
In 2007 an analysis was performed on DNA samples taken from the beer bottle left in Panzera’s yard and from Leavel. Leavel was identified as a possible contributor to the DNA on the bottle. Statistically, the odds of another contributor were one in 870,000 African-American males.
DISCUSSION
I
Section 1027
Leavel contends the court violated section 1027 by denying his request for the appointment of a second mental health professional to examine him and perform an evaluation for purposes of his insanity defense. Section 1027, subdivision (a) provides in part: “When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists ... to examine the defendant and investigate his mental status.”
In August 2005 Leavel pleaded not guilty. On August 24, 2007, Leavel, through his appointed counsel, William Figueroa, added a plea of not guilty by reason of insanity. The court appointed Joy Smith Clark, Ph.D., to examine Leavel’s mental status, and continued the trial. Leavel did not request the appointment of a second mental health professional. Dr. Clark issued a report dated October 4, 2007, in which she found him sane during the commission of the crimes.
Trial finally began on March 9, 2010.
The following day, after checking its records, the court advised Leavel that in 2007 he had entered an insanity plea, and Dr. Clark was appointed and submitted a report. Attorney Figueroa responded, “Wow,” presumably having forgotten the matter. The court questioned whether its appointment of another doctor was necessary in light of Dr. Clark’s report, and Figueroa submitted on the matter. Figueroa stated, “I don’t know that that new appointment would have been able to help us anyway, so—because the [insanity plea] was never withdrawn.” The court asked, “[I]s it your request that we revoke that referral to that doctor given the time constraints?” and Figueroa responded, “Yes. Given the time constraints, Your Honor.”
During the sanity phase of trial, Dr. Clark testified Leavel was sane during the commission of the crimes against Panzera. Dr. Clark explained, “he demonstrated very organized behavior. He told [Panzera] to be quiet, not to cause any noise so as not to cause any disruption, also trying to cover up any trace of him by fingerprints, wiping away fingerprints, and . . . evading.”
We agree with the People that Leavel forfeited appellate review of the section 1027 issue. “It has been held that the appointment of alienists[
In August 2007 Leavel agreed to the appointment of one psychologist. Between then and the commencement of trial in March 2010, he did not request a second examination under section 1027, even though Dr. Clark’s report was unfavorable to him and he had the statutory right to an evaluation by a second examiner. (§ 1027, subd. (a).) At trial, attorney Figueroa again requested the appointment of only one examiner, and the court appointed Dr. Kilian. After the court pointed out the 2007 insanity plea, its appointment of Dr. Clark, and her submission of a report, which Figueroa had apparently forgotten, he agreed to the cancelation of the appointment of Dr. Kilian. Leavel cannot now complain of a section 1027 violation. Figueroa obviously intended to request the appointment of only one examiner, and he was satisfied when he was reminded the evaluation had already been done.
Leavel also asserts the court abused its discretion by not granting a continuance of trial to allow for a second section 1027 evaluation. He submits that the court’s appointment of Dr. Kilian was illusory because there was insufficient time for an evaluation. The People point out that Leavel did not expressly request a continuance, but they concede that he “impliedly sought yet another continuance.”
In any event, in criminal cases “[continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) A “showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence.” (People v. Doolin (2009)
II
Motion for Mistrial
Kelly Craig, of the San Bernardino County Sheriff’s Department, testified that in 2007 he “was asked to write a search warrant for a buccal swab,
The court called a recess and chastised the prosecutor for inquiring into “Leavel’s custody status” and “the fact that he was on parole.” The prosecutor explained he did not anticipate that Deputy Craig would reveal Leavel’s whereabouts when the search warrant was served.
Leavel moved for a mistrial on the ground of prejudicial error. The court denied the motion, stating the parties could stipulate to the DNA swab having been taken from Leavel, and that the court would admonish the jury it was to disregard Deputy Craig’s testimony. Leavel agreed to the stipulation without any further objection. The court advised the jurors, “[Y]ou are to disregard Deputy Craig’s last answer,” and counsel stipulated “that a [DNA] swab was taken from . . . Leavel properly.”
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to the sound discretion of the trial court. . . . “[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” ’ ” (People v. Cox (2003)
We conclude the court acted within its discretion by denying Leavel’s mistrial motion. The single reference to a detention center was easily cured by striking the evidence and admonishing the jury to disregard it. A presumption arises that the jury followed the court’s admonishment (People v. Letner and Tobin (2010)
Leavel’s reliance on People v. Guerrero (1976)
The facts of Guerrero are nothing like the instant facts. Here, there was only a single brief reference to a detention center. No evidence was adduced of the nature of any former crime or to any felony charge or conviction. Even if the jury gleaned from the detention center comment that in 2007 Leavel was on parole in another case, the jury had no particular reason to give the comment any weight.
Morgan, supra,
Moreover, contrary to Leavel’s suggestion, standing alone the court’s excoriation of the prosecutor with regard to the mention of the detention center does not show prejudicial error. We review the court’s ruling, not its reasoning. (People v. Zapien (1993)
Ill
Kidnapping for Robbery Count
Additionally, Leavel challenges the sufficiency of the evidence to support his conviction of kidnapping for robbery. “ ‘ “To determine the sufficiency of
“Any person who kidnaps or carries away any individual to commit robbery” is guilty of kidnapping for robbery. (§ 209, subd. (b)(1).) Subdivision (b) of section 209 “shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended” robbery. (§ 209, subd. (b)(2); see People v. Daniels (1969)
“The rationale for this requirement is that, given ‘the breadth of the statutory definition of kidnapping, ... it “could literally overrun several other crimes, notably robbery and rape, . . . since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. ... It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place.” ’ [Citation.] Our Supreme Court concluded that ‘such incidental movements are not of the scope intended by the Legislature in prescribing the asportation element of the same crime.’ ” (People v. Power (2008)
“With regard to the first prong, the jury considers the ‘scope and nature’ of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong.” (People v. Vines (2011)
The second prong “ ‘ “includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable
The two prongs “are not mutually exclusive but are interrelated.” (People v. Vines, supra,
Leavel contends the first prong is unsatisfied because his movement of Panzera around her own property was merely incidental to the robbery. He relies on Daniels, in which the court held that brief movements the defendants compelled their victims to make inside their homes were merely incidental to robbery and did not substantially increase the risk of harm otherwise present. (Daniels, supra, 71 Cal.2d at pp. 1123, 1124, 1140.) The opinion states: “Indeed, when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him [or her]—whether it be a residence, ... or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209.” (Daniels, supra, at p. 1140, italics added.) Indeed, “[m]ost movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building [citations], or within the premises of a business.” (People v. Power, supra,
The facts here are distinguishable from those in Daniels. In Daniels, the defendants gained entry to the homes of three women. On one occasion, the defendants “walked [a victim] quickly through the dining room into the kitchen, a distance of approximately 18 feet,” where they demanded cash. (Daniels, supra,
Here, the evidence supports a finding that Leavel’s forcible movement of Panzera from the kitchen to her bedroom was unnecessary to facilitate a robbery. He had already taken her cell phone and $70 in cash from her purse. The bedroom contained no safe she was required to open, and he did not ask her where any of her belongings were located. Rather, on his own accord he rifled through her nightstand drawer and found a loaded gun. It appears that Leavel sought Panzera’s company in the bedroom, rather than her assistance, because on the way there he was relating his “sad story” to her and he insisted that she join him in smoking a cigarette.
“[A] movement unnecessary to a robbery is not incidental to it at all.” (People v. James (2007)
Further, even if Leavel’s forcible move of Panzera to the bedroom was in furtherance of the robbery, the jury could find his forcible move of her from the bedroom to the kitchen and other locations was not. Leavel was hungry and wanted food. After eating some ham, he ordered her into the bathroom to flush it down the toilet. He later physically forced her outside the house where he retrieved his clothes and shoes, and then he forced her back into the house and into the living room where he required her to watch him dress.
Substantial evidence also supports a finding that the forcible movements increased the risk of harm to Panzera. She was 69 years old when the ordeal occurred, and Leavel moved her around by grabbing her neck and arm. Most of the movements occurred when he was carrying her loaded gun. Panzera had disconnected the phones on Leavel’s order and she was cooperative with him. He could have secured her in one spot in the home and left her alone while he searched the house and escaped with the loot. Leavel is six feet tall and he weighed about 250 pounds. He had no cause to manhandle Panzera to achieve his robbery objective. Further, forcing her outside in the dark increased the risk of harm to her from a possible escape attempt, and forcing her back inside decreased the possibility of detection, escape or rescue, and enhanced his opportunity to commit additional crimes against her. (People v. Dominguez, supra,
IV
Prior Strike Convictions
Leavel faults the court for not striking one or more of his prior strike convictions under People v. Superior Court (Romero) (1996)
In ruling on whether to strike a prior conviction allegation, “the court in question must consider whether, in light of the nature and circumstances of
The court’s ruling on a motion to strike is subject to a deferential abuse of discretion standard of review. (Carmony, supra,
Leavel admitted prior robbery convictions (§ 211) in 1985 and 2000, and a burglary conviction (§ 459) in 1996. His motion to strike states that in 1985 he “robbed a customer at a Wendy’s drive thru at knifepoint” and demanded $2. The motion claimed he was legally drunk at the time and he had not been taking his medication for “Manic/Depression.” The motion does not describe the other two crimes, and merely states “the fact [Leavel] was not on his medication leads to unusual behavior which results in [him] committing seemingly violent acts. Unfortunately, this behavior is the result of [his] illness and his use of alcohol and other illegal substances.”
Leavel has not shown extraordinary circumstances warranting reversal. The record shows the court was aware of its discretion under Romero. In refusing to strike a prior conviction it explained, “I will find that there’s no good reason or the interest of justice will not be served by the actual striking of the priors.” Additionally, the record does not suggest the court considered impermissible factors.
Leavel has a history of property crimes dating back to 1985, and he cites to no evidence pertaining to his work history, prospects for the future, or treatment for his mental health and substance abuse problems that he claims led to the crimes. (See Carmony, supra,
DISPOSITION
The judgment is affirmed.
Benke, J., and O’Rourke, J., concurred.
Appellant’s petition for review by the Supreme Court was denied May 9, 2012, S200987.
Notes
Further statutory references are also to the Penal Code unless otherwise specified.
Former section 12021, subdivision (a)(1) is continued without substantive change in section 29800, subdivision (a)(1).
The jury acquitted Leavel on counts for residential burglary and robbery in a separate incident.
By the time of trial Panzera had died. Her videotaped conditional testimony was presented to the jury.
The court granted the defense more than 15 continuances throughout the proceedings. Further, on several occasions the court questioned Leavel’s competence to participate in the proceedings, appointed mental health professionals to evaluate him under section 1368, and suspended the proceedings. On each occasion, the court ultimately found Leavel competent to stand trial and reinstated the proceedings.
Section 1027 originally referred to mental health examiners as “alienists.” (Stats. 1929, ch. 385, § 1, p. 702.) In 1965 the statute was amended to substitute “psychiatrists” for “alienists” (Stats. 1965, ch. 568, § 1, p. 1894), and in 1978 the statute was amended to insert provisions relating to psychologists (Stats. 1978, ch. 391, § 2, p. 1242).
Leavel’s suggestion that Dr. Clark’s report was stale by the time of trial is incorrect as an examination under section 1027 is to assess the defendant’s mental status during commission of the crimes. (People v. Williams (1988)
Leavel does not challenge the jury instruction on the kidnapping for robbery count. The jury was instructed that to convict it must find he intended to commit robbery; acting with that intent he “took, held, or detained [Panzera] by using force or by instilling a reasonable fear”; using that force he moved Panzera, or made her move, “a substantial distance”; Panzera “was moved or made to move a distance beyond that merely incidental” to the commission of the robbery; when the movement began Leavel already intended to commit robbery; Panzera did not consent to the movement; and he had no reasonable belief she consented.
On the other hand, a “movement necessary to a robbery may or may not be merely incidental to it.” (People v. James, supra,
The People’s respondent’s brief erroneously states Leavel retrieved his clothes and shoes from the kitchen of Panzera’s home. Panzera testified he retrieved the items “[f]rom the back where he came in the window.” She was asked, “Now, did he leave the house to get the clothes?” and she responded, “He took me with him,” and he did so “[b]y the back of the neck.” In objecting to Leavel’s motion for acquittal on the kidnapping for robbery count, the prosecutor