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The People v. Morgan Kindell Malmgren

December 2, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MORGAN KINDELL MALMGREN, DEFENDANT AND APPELLANT.



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

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FACTUAL AND PROCEDURAL BACKGROUND

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 ...


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