People v. Ram

1

THE PEOPLE, Plaintiff and Respondent, v. VICTORIA YVONNE RAM, Defendant and Appellant.

F086334

California Court of Appeals, Fifth District

August 15, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County. No SCR017623 Ernest J. LiCalsi, Judge.

Proper Defense Law Corporation, Sally S. Vecchiarelli and Wesley L Carlson, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SNAUFFER, J.

After a prolonged and troubled 14-year marriage, appellant Victoria Yvonne Ram placed pieces of glass and elemental mercury - apparently from a broken thermometer - into her 70 year-old husband Norberto's box of Cheerios.^[1]

One morning soon thereafter, Norberto poured himself a bowl of Cheerios, added milk, and started to eat. He crunched down on something odd and found pieces of broken glass in his mouth. He grabbed the cereal box and his bowl and drove himself to the hospital. On the way, he met Victoria coming in the opposite direction, who disclaimed any knowledge of what he was talking about. He looked into the cereal box and saw several small metallic beads of what later turned out to be mercury. Although he was hospitalized for a week, he recovered because the amount of mercury absorbed was clinically minimal. Later, but well before charges were filed, Victoria contacted Norberto several times hoping to persuade him it was all merely an accident and to not "throw [her] under" the wheels of that ubiquitous "bus."

A jury convicted Victoria of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, subd. (a) &187, subd. (a)), poisoning with food (Pen. Code, § 347, subd. (a)(1)), elder abuse (Pen. Code, § 368, subd (b)(1)), and victim dissuasion (Pen. Code, § 136.1, subd. (b)(2).) She was sentenced to an indeterminate life term on the attempted murder conviction and a consecutive 16-month determinate sentence on the dissuasion count. Two-year sentences were imposed on the poisoning and elder abuse counts, but were stayed under Penal Code section 654.

Victoria first claims the trial court prejudicially allowed testimony from a "carecoordinator" at a health care facility regarding statements Victoria made during an intake interview after she was detained pursuant to a post-offense "5150" mental health hold.^[2]She contends his testimony was inadmissible because it comprised and disclosed communications protected by the psychotherapist-patient privilege provisions of Evidence Code^[3] section 1014 (the privilege), and that no statutory exceptions to the privilege applied. She further maintains that she did not waive the privilege by failing to assert it or object to the care-coordinator's same testimony at the preliminary hearing.

Second, Victoria claims her conviction on the victim dissuasion count must be reversed because after People v. Reynoza (2024) 15 Cal.5th 982 (Reynoza), in order to violate Penal Code section 136.1, subdivision (b)(2), a defendant must separately attempt to dissuade a victim both before and after charges are filed. Since her dissuasive conduct here only occurred prior to charges being filed - and despite the fact Norberto cooperated after charges were filed and testified at the preliminary hearing and at trial - she insists the evidence was nonetheless insufficient for a conviction for the offense. As an implicit corollary claim, she adds that the jury was therefore prejudicially misinstructed based on her post-Reynoza interpretation of the twofold nature of this dissuasion offense.

We affirm.

FACTUAL BACKGROUND

In February 2018, 69-year-old Victoria and 70-year-old Norberto^[4] had been married, although not always blissfully, since 2004. In fact, at the time of the offenses they lived in separate parts of their "beautiful big" Coarsegold home in the foothills south of Yosemite.

They had occasionally discussed divorce, and Victoria had filed for divorce in both 2008 and 2016, but later dropped both petitions. Victoria resisted divorce because it would mean she would have to equally share the community property with Norberto. She believed he did not deserve it because it was her money and labor that had built and funded their home, and she did not want Norberto or his children from an earlier marriage to benefit from what she believed to be her exclusive legacy. Victoria had taken out at least three life insurance policies on Norberto, even though Norberto testified he did "not believe in life insurance policies."^[5]

On the morning of February 21, 2018, Norberto poured himself a bowl of milk and Cheerios. When he was almost finished eating, he felt a crunch, which he thought was odd considering the cereal should have been soggy at that point. He took another spoonful and thought he broke a tooth; instead, he pulled two pieces of broken glass out of his mouth. Notably, Norberto was the only one in the two-person household to regularly eat Cheerios, and it would be "extremely unusual" for Victoria to eat them.^[6]

Norberto took the cereal box and the bowl and drove himself to the hospital. On the way he met Victoria coming from the opposite direction and told her that he had just eaten glass in his cereal. She told him she did not know how that could have happened. He glanced into the cereal box and now saw some silver-colored metallic beads inside. While waiting at the hospital, Norberto examined his cereal bowl, and "put [his] finger on the biggest silver bead, and it separated [in]to a bunch of little beads." He immediately realized it was mercury, because he was experienced with the substance and had in fact collected several vials of mercury from old thermostat switches and thermometers over the years. He said he then became "concerned" that Victoria was "the source of the glass and mercury in [his] food."

Norberto remained in the hospital for a week. According to Norbert's adult daughter, she and her siblings stayed with their father the entire time and Victoria never came to visit him. She had told the hospital that if Victoria attempted to contact Norberto to let her know, but she was never notified of any such attempts. Norberto also said he did not ever see Victoria while he was in the hospital.

The parties stipulated that Norberto had ingested mercury that morning, that any "gastrointestinal absorption of elemental mercury [was] negligible," and that "elemental mercury is not poisonous and will not be harmful unless the person has an ulcer." Even so, the testimony went a bit further than the parties' stipulation. Although elemental mercury itself is not poisonous per se, and would normally pass through the system, the director of California Poison Control explained to the investigating detective that if mercury stayed in the system, as through an "ulcer or cut or something where instead of passing through, it got trapped and stayed in your system, then you would have issues with mercury being in your system." (Italics added.) In fact, the director was more concerned about the presence of broken glass than the mercury.^[7]

The detective interviewed Victoria the next day while other sheriff's personnel were executing the search warrant at the house. She initially denied knowing anything about what had happened the day before. When he told her that mercury beads had appeared on Norberto's x-rays,^[8] she said," 'Oh, how did that happen?'" She added that she did not really know what mercury was and, when told that it was the "stuff" in old thermometers, she said she did not have any of those. She then showed the detective the thermometers she said she did have, but none was an old mercury-type.

Victoria explained to the detective that Norberto was her fifth husband, that she had used her own money to buy the property and build the house they lived in, and she did not like that Norberto would get half of the house if they divorced. She conceded she had taken out life insurance policies on Norberto in the past and also that she did not like Norberto lending their money to his daughters from his previous marriage. She added that Norberto's children hated her, but he was the cause. She admitted she had filed for divorce but withdrew the petitions, saying, "I really wish I would have gone through the divorce, but he wants to take everything even though he didn't put one damn penny into this house."

When the detective told her that Norberto had eaten mercury and glass in his Cheerios, Victoria again insisted she had no idea where that could have come from. Later in the interview, however, Victoria finally remembered that when she was cleaning out the pantry of old items, there was some "glass" from a broken "jar" she had accidentally dropped, and she put it in an old expired cereal box to be thrown away. In reality, Norberto's Cheerios box had an expiration date some eight months away.^[9] Two of Victoria's neighbors, S.A. and C.S., testified about her behavior leading up to and after the incident. S.A. said Victoria had complained about Norberto, calling him an idiot, and wished that he would be gone. Afterwards, Victoria told S.A. that a candy thermometer had broken, and she had scooped the pieces into an "expired" cereal box that was supposed to be thrown away.

C.S also testified that Victoria called Norberto an idiot and told her that she had put her own money into the house and was concerned about what would happen to it. Victoria insisted to C.S. that what happened to Norberto was purely accidental: a glass candy thermometer had broken on the countertop, and she swept the pieces into an "empty Cheerios...