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People v. Delgado

April 29, 2010; As Modified: May 17, 2010


(Super. Ct. No 2008001932) (Ventura County), Bruce A. Young, Judge.

The opinion of the court was delivered by: Coffee, J.


Gloria Delgado appeals from the judgment following her conviction by jury of a criminal threat, an attempted criminal threat, dependent adult abuse, and two misdemeanor business obstruction offenses.*fn1 (Pen. Code, §§ 422, 664/422, 368, subd. (b)(1) & 602.1, subd. (a).)*fn2 The court sentenced her to four years in prison (a three-year midterm for dependent adult abuse; consecutive terms of eight and four months, respectively, for a criminal threat and an attempted criminal threat; and concurrent terms of ninety days for the business obstruction offenses). Appellant challenges the sufficiency of the evidence to support her criminal threat and attempted criminal threat convictions, and contends that her dependent adult abuse conviction requires reversal because the court failed to give the jury a unanimity instruction. She also argues that she is entitled to the retroactive benefit of an amendment to section 4019 that went into effect after she was sentenced, and thus to receive a total of 188 days of presentence conduct credits. We affirm and remand the case to the superior court with directions to amend the abstract of judgment to increase appellant's presentence conduct credits to 188 days.


Prosecution Evidence

In 2007, appellant's adult son, Paul Murillo, lived in the sub acute unit of St. John's Pleasant Valley Hospital (St. John's). His arms and legs are paralyzed and he needs help breathing, eating and bathing.

Appellant had a power of attorney for Murillo. She told staff members that if they turned him, she would have them arrested for assault. Murillo had a stage two decubitus ulcer, a sore that can result when a patient is not turned from side to side. If decubitus ulcers become infected, they can be fatal. John Jessop-Ellis, the nursing director of St. John's sub acute unit, told appellant it could cause Murillo harm if he were not turned, but she refused to authorize staff to turn him. After visiting hours, with Murillo's permission, the staff turned him, and his ulcer healed.

A doctor at St. John's ordered that Murillo be weaned from the ventilator to strengthen his lungs. After a therapist took Murillo off the ventilator twice, appellant forbade the staff from trying to wean him from the ventilator.

On December 16, 2007, because Murillo had a problem that caused him pain, his doctor ordered staff to take him to St. John's emergency unit. The emergency unit was especially busy that day. Patients were waiting four to six hours to receive care. The emergency room doctor who evaluated Murillo concluded that he should return to his room. Appellant refused to permit staff to move Murillo back to his room and blocked their access to him. She said that he was not receiving necessary care at St. John's and insisted that he be transferred to another facility. Murillo was using a ventilator. Appellant told staff to disconnect his ventilator so that she could "bag" him and drive him to another hospital. (Bagging involves placing a bag over the patient's tracheotomy and squeezing it to force air into the lungs so that the patient can breathe.) It is not safe for a ventilator-dependent patient to ride as the sole passenger while the driver "bags" him.

Maydeen Hanel, a nursing administrator, told appellant that Murillo could not be moved without authorization from his primary care doctor and a doctor at the receiving facility. She also explained that Murillo needed an ambulance with qualified personnel to transport him. Appellant was loud and confrontational and she refused to accept Hansel's explanation. Appellant's conduct "pulled all the nursing staff away from all the patients at that time" and impacted the entire hospital. The emergency unit's on-call doctor could not give patients his attention because he had to deal with appellant. The hospital contacted the Ventura County Sheriff's Department.

The hospital director, Robert Hacker, went to the emergency room and told appellant that she was disrupting the work of the hospital staff, and asked her to leave. When she refused, he directed her to leave, but she refused to leave again. Ventura County Sheriff's Department Deputy Ron Clayton arrived at St. John's at about 8:00 p.m. Appellant stayed in the doorway, blocking entrance to Murillo's room. She was uncooperative and agitated when Clayton addressed her. She yelled and repeatedly demanded that Murillo be released into her care. Clayton asked appellant to leave the hospital, stating that he did not want to have to remove her forcefully. Hacker explained that if she did not leave, Clayton would forcefully remove her. After appellant repeatedly refused to leave, Clayton arrested her and removed her from the hospital.

On December 25, 2007, Murillo had a highly contagious and potentially deadly bacterial infection called methicillin resistant staphylococcus aureus (MRSA). Anyone who planned to come within three feet of a patient with MRSA was required to wear isolation gear (a gown and gloves). A sign outside Murillo's room in the sub acute unit instructed people to wear isolation gear before entering his room. The gear was stored in a cart just outside Murillo's room. On December 25, when appellant visited Murillo, she refused to wear isolation gear.

Hacker went to the hospital to speak with appellant on December 25. When he told her to follow hospital policies and wear isolation gear, she refused to do so. Appellant's conduct disrupted the sub acute unit and interfered with Murillo's and other patients' care. Hacker told her she was disrupting the staff's ability to care for patients, and that she must leave. Appellant was loud and refused to leave. Because sub acute unit patients are fragile, loud noises distress them. A deputy sheriff escorted her from the hospital and arrested her.

Maria Norma Kern and Gabiola Grimaldo worked in St. John's sub acute unit. On January 10, 2008, they gave Murillo a scheduled whirlpool bath and took him back to his room. Greg Goebel helped them put a shirt on Murillo and left the room. Kern and Grimaldo were still cleaning the water and towels from the area surrounding Murillo's bed.

After Murillo said that he wanted to talk to his mother (appellant), Kern dialed the phone for him. Murillo used headphones to speak on the phone. Murillo told appellant that Kern and Grimaldo had hurt his back and neck. Kern and Grimaldo then heard appellant scream, "Tell them I am going to find out where they live and I am going to come out and get them." Murillo relayed the threat to them. Grimaldo recalled that he said, "My mom wants to find out where you guys live because my mom is going to get you...." Kern recalled that he said, "My mom says she is going to find where you live because... she is going to get you because you are F dumb and if you don't know what to do, F this and F that." Murillo used profanity and called Kern and Grimaldo degrading names. They left his room. The nurses testified that they did not hurt Murillo.

Kern and Grimaldo knew appellant's history of having "bad tantrums," yelling, throwing things, kicking carts, and pushing tables toward hospital staff. Murillo had told Kern that his shin tattoos were gang-related. Grimaldo understood that Murillo's injuries resulted from a gang-related shooting. Appellant's threat caused Grimaldo to fear ...

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