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The People v. Morgan Kindell Malmgren


December 2, 2010


(Contra Costa County Super. Ct. No. 050800029)

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


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Morgan Malmgren appeals from her conviction of second degree robbery. (Pen. Code, § 211.) She contends the court erred in failing to instruct that voluntary intoxication could negate both the specific intent required for that offense, and the mental state required for aiding and abetting. We conclude there was no error, and even assuming there was, it was harmless.


Defendant and the robbery victim, Zebulon Baldwin, were friends at the time of the offense, having met at a tattoo parlor where Baldwin worked as a tattoo artist. About a month before the offense, defendant accused Baldwin of stealing $900 from her. Shortly after she made that accusation, Baldwin claims she "held [him] up at knife point" in her apartment, taking his keys and wallet. She later told him she found out that her roommate's boyfriend was the actual thief, and she apologized for having suspected him.

On November 26, 2007, defendant and Baldwin made arrangements to meet at a convenience store in Concord between 6:00 p.m. and 6:30 p.m. to price some tattoos. Baldwin then drove defendant to a mobile home park in Pittsburg, where Baldwin hoped to do some tattoo business with Sean Cairns, a customer that defendant had lined up for him. When they arrived, four men were on the stairs of Cairns's trailer: Cairns, Joey Carroll, who also lived in the trailer park, and two unidentified dark-skinned men. After entering the trailer, several members of the group, including defendant, smoked methamphetamine. Baldwin talked to Cairns and Carroll about possibly getting some tattoos, but neither of them had the money to get one right away.

Baldwin developed a headache, so he left the mobile home and headed for his truck that was parked at the front of the mobile home park. Defendant accompanied him. As they were walking down an alleyway, Baldwin was ambushed by the same two Black men who had been in Cairns's mobile home. They punched and kicked him until he ended up on the ground in a fetal position. Baldwin thought he saw one of them pull a gun out of his waistband. During the attack, Baldwin dropped his keys, which were picked up by one of the Black men.

The men demanded Baldwin's possessions, and Baldwin handed over his cell phone, wallet, and watch. Defendant stood at a distance from the group and did not participate in the assault or robbery, but she also offered no assistance to Baldwin. As the attack continued, Cairns and Carroll emerged from Cairns's trailer. Cairns, and perhaps others, told Baldwin he deserved to be robbed because he had stolen from someone else.*fn1 Carroll eventually talked the other men into halting their attack on Baldwin.

Cairns said, "Let's get him down to his truck so we can get all of his stuff out." The attackers then escorted Baldwin to his truck, two in front and two behind. After the group arrived at Baldwin's truck, Cairns and Carroll kept watch on Baldwin, while the two Black men looted the truck. They removed a laptop computer, a cell phone, a radar detector, art supplies, tattoo books, and a camera from his truck. They threw Baldwin's keys into a grassy park area, where they were later retrieved by a police dog. Defendant encouraged the men to steal Baldwin's tattoo tools, but they decided not to take those because Baldwin needed them for his livelihood.

As the others were leaving the scene, defendant came back up to Baldwin and began shouting obscenities at him. She was very agitated and punched him twice in the face with closed fists. She then demanded that he give up his dentures to "teach him a lesson." Carroll, who testified for the prosecution in exchange for immunity,*fn2 did not see how defendant came into possession of the dentures, but she did have possession of them at one point. The police found the dentures four days later in a trash can outside Cairns's trailer.

Defendant yelled out Baldwin's address and said they knew where he lived. His attackers threatened to kill him and his parents if he reported the crime to the police. Nevertheless, Baldwin went to a neighbor's house and called 911.

After the incident, defendant, Cairns, and Carroll went to a Motel 6 where defendant had rented a room. Jason Suarez, a computer repairman who also testified under a grant of immunity, knew defendant from having done a computer repair for her in the past. He testified that defendant left a series of cell phone messages for him beginning at about 11:00 p.m. She initially told him she had a laptop for sale for $500, but kept reducing the price in successive messages. They eventually agreed on a price of $100. He drove to the Motel 6, picked defendant up (with the laptop), went to an ATM to withdraw the money, paid her for the computer, and then dropped her back at the motel about 15 or 20 minutes later. The computer bag also contained Baldwin's tattoo art books.

This testimony was consistent with Carroll's, who testified that while they were at the motel, defendant left for 20 to 30 minutes taking the laptop with her.

Cairns and defendant were both charged with second degree robbery, and defendant was also charged with possession of methamphetamine for sale. Their trials were severed, and defendant's drug offense was also severed from the robbery offense for trial.

After a jury trial, defendant was convicted of second degree robbery. On March 12, 2009, she was sentenced to five years in prison, with execution suspended. She was granted probation for three years and ordered to serve 360 days in jail as a condition of probation.

This timely appeal followed.


As part of its charge to the jury, the court instructed on both direct perpetration of robbery and aiding and abetting. Defense counsel requested that the court give CALCRIM 3426 on voluntary intoxication, but the request was denied. The court found there was "no substantial evidence warranting" the instruction. It held that evidence of "use by itself, even if believed," does not meet the substantial evidence threshold.

The only issue on appeal is whether the court erred in refusing to give CALCRIM 3426 at defendant's request,*fn3 which instructs the jury that it may use evidence of defendant's voluntary intoxication in consideration of whether defendant was capable of forming the specific intent necessary for robbery, or whether she was capable of achieving the mental state necessary for aiding and abetting.

The parties agree on much of the law related to the court's limited duty to instruct on voluntary intoxication. Both parties agree, of course, that robbery requires the perpetrator to have the specific intent to permanently deprive the victim of property. (People v. Burney (2009) 47 Cal.4th 203, 234; People v. Crawford (1968) 259 Cal.App.2d 874, 877; CALCRIM 1600.) Aiding and abetting also requires a specific mental state: knowledge of the principal's illegal purpose and the intent to encourage or facilitate that purpose. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123; People v. Prettyman (1996) 14 Cal.4th 248, 259, 262; CALCRIM 1603.)

Appellant admits the court had no sua sponte duty to instruct on voluntary intoxication.*fn4 However, both parties agree that such an instruction must be given upon request if the defense is supported by substantial evidence. (People v. Rundle (2008) 43 Cal.4th 76, 145; People v. Castillo (1997) 16 Cal.4th 1009, 1014.) But if there is no supporting evidence a trial court may refuse the requested instruction. (People v. Memro (1995) 11 Cal.4th 786, 868.)

Where, as here, the court instructs on aiding and abetting in addition to a direct perpetrator theory, a voluntary intoxication instruction also must be given on request. (People v. Mendoza, supra, 18 Cal.4th at p. 1131.)

Defendant claims the voluntary intoxication instruction was required in this case because there was substantial evidence that she consumed methamphetamine just before the robbery. She equates that with substantial evidence of voluntary intoxication, which arguably could negate the necessary mental state for either robbery or aiding and abetting. The Attorney General argues that, while there was evidence that defendant consumed methamphetamine, there was no evidence that she was so intoxicated as to negate the specific intent required for the offense. Therefore, he argues, the court was not required to give the requested instruction. He also points out that there was no expert testimony about the effects of methamphetamine or the quantities necessary to so affect a person's cognitive powers as to render them unable to form a specific intent.

We agree with the Attorney General. It is true there was evidence of ingestion, but there was no testimony about how much methamphetamine defendant consumed or the effect it had on her. The testimony suggested casual, social, and fleeting use of the drug,*fn5 not consumption of an unusually large quantity or over an extended period. Nor was there evidence of defendant's actual intoxication or impairment as a result of her consumption of the drug.

Two police officers testified about the symptoms of being under the influence of methamphetamine, such as dilated pupils, clammy skin, rapid speech, and grinding of the jaw, and other signs indicative of use, such as blackened gums and rotting teeth, track marks, or burn marks on the fingers. They also testified that people under the influence of methamphetamine tend to be jittery, anxious or excited, to display mood swings, and to behave abnormally, either aggressively or with extreme complacency. These officers were not qualified as experts on the effects of drugs, however, and did not testify whether defendant appeared to be under the influence.*fn6 Nor did they testify about the likely effects of the quantity of methamphetamine used by defendant.

Defendant points out that she was described as "agitated" and aggressive during the theft from Baldwin's truck, which she claims was indicative of methamphetamine intoxication. She notes that she was calm and helpful to Baldwin before the robbery, giving him an Advil when he complained of a headache. She also did not participate at all during the first phase of the robbery, but rather stood off at a distance. Then, during the second phase, she became suddenly aggressive, punching Baldwin twice in the face and shouting at the others to steal his tattoo equipment and dentures. This dramatic change in her behavior, she suggests, is precisely the kind of "mood swing" that would suggest methamphetamine intoxication.

Although there was some erratic behavior on defendant's part, this conduct was as easily explained by intense emotion as by the effects of methamphetamine. In addition, defendant's shouting at her co-conspirators to steal Baldwin's tattoo equipment and dentures strongly and plainly suggests she did, in fact, have the intent to steal and the intent to aid in the robbery, if not to physically take the property from defendant's truck and mouth herself. We therefore agree with the Attorney General that the court did not err in refusing the voluntary intoxication instruction requested by the defense.

This was not a crime of impulse or opportunity, in which the voluntary intoxication defense might more reasonably be advanced. We infer this not only from the testimony about defendant's behavior during the robbery, but from all of the combined evidence at trial. Notably, there was strong evidence that the robbery was preplanned.

Cairns told Baldwin during the robbery that he was getting what he deserved because he had stolen from someone else. The obvious inference is that defendant had told her friends she suspected Baldwin had stolen $900 from her.

Even more significantly, Carroll testified that Cairns had told him earlier in the day that "someone might . . . get beat up" later because he had stolen from one of Cairns's friends (inferably defendant). Defendant apparently had planned the robbery with Cairns, and had lured Baldwin to the trailer park for the express purpose of robbing him. (Evidently, despite her apology, she had not quite convinced herself that Baldwin was really innocent of the theft.) It may be inferred that defendant and Cairns had gathered their two Black friends in the trailer to help with their plan.

The evidence strongly suggests defendant engaged in behavior purposefully designed to gain Baldwin's trust, all the while having set a trap for him. The crime involved cunning, deception, and planning. Getting Baldwin an Advil was not an act of genuine kindness by defendant, but part of the plot to put Baldwin at ease so that defendant's friends could catch him unawares when the moment was right. Her passivity during the first phase of the robbery was very likely a part of her plan to maintain an innocent appearance, rather than uncharacteristic complacency brought on by methamphetamine consumption. And her so-called "mood swing" appears most likely to have been an emotional outburst of pent up rage after defendant had disguised her true feelings for so long. Or perhaps it was a reaction to the small take from the robbery.

Even if we assume the methamphetamine amplified defendant's emotional expression, we can see no evidence to suggest her capacity was significantly reduced, certainly not to the point that she could not form the intent to steal. Her bold commands to her companions to steal more of Baldwin's possessions strongly reinforce the impression that she was committed to executing the preplanned robbery.

These factors show that defendant thought about the crime in advance and formed a criminal purpose at some time prior to the actual robbery. There is no evidence that defendant was intoxicated at the time she preformed an intent to rob and arranged for her friends to help her carry out her plot. The criminal purpose appears to have persisted over an extended period without defendant's reconsidering the wisdom of her intentions. Of course, there must be a union of act and intent (e.g., People v. Carrington (2009) 47 Cal.4th 145, 186; People v. Anderson (2007) 152 Cal.App.4th 919, 936), and the jury was so instructed. That defendant continued to entertain the same purpose during the execution of the robbery is shown by her exhortations to her companions to steal more of Baldwin's possessions.

Finally, even assuming for purposes of argument that the court erred in refusing the instruction, any such error was harmless. Defendant argues that the Chapman standard of prejudice for federal constitutional error should apply (Chapman v. California (1967) 386 U.S. 18, 24), claiming the error lightened the prosecution's burden of proof and shifted the burden to the defense. But instructional errors are generally reviewed under the state law standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 164-165.) And even if we were to apply the Chapman standard in this circumstance the result would be the same.

Given the strength of the evidence against defendant, and the weak evidence of intoxication, we find no reasonable possibility the verdict would have been more favorable, even if the requested instruction had been given.


The judgment is affirmed.

We concur: Haerle, Acting P.J. Lambden, J.

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