Metropolitan News-Enterprise


Friday, May 16, 2008


Page 3


C.A. Upholds Conviction of Bank Robber Who Said He Wanted to Be Caught


By SHERRI M. OKAMOTO, Staff Writer


A trial court did not deprive a defendant of his right to an instruction on the defense theory of the case by refusing to modify the standard jury instruction on motive in light of the defendant’s claim that he had robbed a bank in hopes of being caught, the First District Court of Appeal held yesterday.

In affirming the defendant’s second degree robbery conviction, Div. One held it was not reasonably likely that the jurors would have construed the motive instruction given pursuant to CALCRIM No. 370 as precluding them from considering the proffered defense that defendant’s desire to be incarcerated tended to show that he was innocent. 

A week after being released on parole after being incarcerated for a bank robbery, Horace Bordelon returned to the same bank and robbed it again. Less than two minutes after he left the bank, police officers arrested him without incident.

At trial, defendant’s expert witness, a clinical psychologist, discussed the phenomenon of “institutionalization,” which he described as psychological change in institutionalized individuals such as prisoners and hospital patients which causes the individuals to become dependent upon the structure of the institution. The expert opined that Bordelon exhibited behavior consistent with institutionalization.

Defense counsel characterized the robbery as a “cry for help,” and argued that Bordelon could not be found guilty because he did not intend to permanently deprive the bank of its property, as required for a robbery conviction. 

Alameda Superior Court Judge Allan D. Hymer instructed the jury pursuant to CALCRIM No. 370 that having a motive “may be a factor in tending to show that the defendant is guilty.”

Hymer denied Bordelon’s request to omit or modify the motive instruction to account for Bordelon’s institutionalization defense. The judge determined that the motive instruction was not misleading when taken together with the specific intent instruction he also issued which provided that in order to convict Bordelon, the jury had to find that he “intended to deprive the owner of [the stolen property] permanently or to deprive an owner temporarily but for an unreasonable time so as to deprive him or her of a major portion of its value or enjoyment.”

Writing for the appellate court, Presiding Justice James J. Marchiano agreed with Hymer’s decision. Marchiano wrote that the challenged instruction correctly stated that motive may tend to show guilt, even in the given circumstances.

He explained:

“This is after all a bank robbery case, and while it ordinarily goes without saying, criminals rob banks to get money.  Defendant may have had any number of reasons, apart from any desire to be imprisoned, for doing what he did.”

Bordelon’s purported desire to be incarcerated was not necessarily incompatible with an intent to commit robbery, Marchiano continued, noting that there was no evidence that Bordelon ever planned to voluntarily return the stolen money.

Marchiano also reasoned that the specific intent instruction allowed the jury to consider Bordelon’s alleged motive for purposes of determining guilt, and it was “a point that was very clearly driven home in the defense arguments.”

Justices Douglas E. Swager and Sandra L. Margulies joined Marchiano in his opinion.

The case is People v. Bordelon, 08 S.O.S. 2878.


Copyright 2008, Metropolitan News Company