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People v. Zielesch

November 23, 2009; as modified December 3, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GREGORY FRED ZIELESCH, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Yolo County, Stephen L. Mock, Judge. Affirmed. (Super.Ct.No. 057249)

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

The tragic loss of life in this case illustrates the danger that faces law enforcement officers every day, even during what on the surface appear to be routine encounters.

Defendant Gregory Fred Zielesch bailed Brendt Volarvich out of jail and asked that, in return, Volarvich kill Doug Shamberger, who had been sleeping with defendant‟s wife. Volarvich agreed but needed a "piece" to carry out the hit. Defendant provided Volarvich with a .357 magnum revolver and $400 to purchase some methamphetamine. The next day, while driving back to defendant‟s house, Volarvich was stopped by California Highway Patrol Officer Andrew Stevens for a traffic violation. High on methamphetamine and afraid of being sent back to jail, Volarvich shot and killed Officer Stevens with defendant‟s gun when the officer walked up to the driver‟s window and greeted Volarvich with a friendly, "How are you doing today?"

Defendant was convicted of the first degree murder of Officer Stevens, conspiracy to commit the murder of Doug Shamberger, and other offenses and enhancements not relevant to the issues raised on appeal. He was sentenced to state prison for an indeterminate term of 50 years to life (two consecutive terms of 25 to life), plus a consecutive determinate term of seven years. He appeals.

In the published parts of this opinion, we reject defendant‟s contentions that his murder conviction must be reversed because the shooting of Officer Stevens was not in furtherance of the conspiracy to kill Shamberger and "was both unforeseen and unforeseeable," and that the entire judgment must be reversed because he was denied his right to a fair trial when the judge allowed courtroom spectators to wear buttons displaying a color photograph of Officer Stevens for six days at the start of trial.

As we will explain, when defendant bargained for the assassin‟s services and armed him with a gun and money to buy methamphetamine, defendant knew that the assassin had an unstable personality, with the "mentality" to kill someone other than the intended victim of the assassination. Defendant also knew that the assassin had just been released from jail, was on searchable probation, and would not want to be returned to custody if a law enforcement officer found the assassin in possession of methamphetamine and defendant‟s gun. From these facts, jurors reasonably could conclude the cold-blooded murder of Officer Stevens was a natural and probable consequence of the conspiracy to kill Shamberger because a reasonable person, knowing what defendant knew, would recognize that if the unstable, methamphetamine using, and armed assassin were detained by a law enforcement officer before the assassination was completed, it is likely that he would kill the officer to avoid arrest and complete his mission.

And it is an insult to the intelligence and integrity of jurors to suggest that, despite the judge‟s admonition not to be influenced by buttons worn by some of the courtroom spectators, the jurors would have been so influenced by the buttons that they would be unable to base their verdict solely on evidence presented at trial. Nothing about the buttons was coercive or intimidating, and we have no doubt that the verdicts would have been the same if the trial court had not allowed the spectators to wear the buttons during the first six days of this eight-week trial.

In the unpublished parts of our opinion, we reject defendant‟s other claims of reversible error. Consequently, we shall affirm the judgment.

FACTS

On the afternoon of November 17, 2005, Officer Stevens stopped Volarvich on a road outside of Woodland, California. Stevens approached the vehicle, lowered his head towards the driver‟s side window, and greeted Volarvich with a friendly, "How are you doing today?" Volarvich responded, "Pretty good," then shot Stevens in the face with a Taurus .357 magnum revolver. Death was instantaneous. Stevens collapsed on the side of the road, and Volarvich drove away.

The events that culminated in the murder of Officer Stevens began three days earlier at a motel in Woodland, where Volarvich and his girlfriend, Rebecca Pina, were staying. After a night of using methamphetamine, they failed to check out of the motel at the scheduled time on November 14. Woodland police officers, summoned to evict the holdover tenants, discovered marijuana on Pina and brass knuckles and methamphetamine on Volarvich. The officers arrested Volarvich.

Pina, who had been involved in an intimate relationship with defendant, drove Volarvich‟s car to defendant‟s house and asked for help with bail for Volarvich. Defendant reluctantly agreed and ultimately arranged a deal with a local bail bondsman whereby defendant would co-sign for the full amount of the $10,000 bond and pay $300 of the $1,000 bond premium, and Volarvich would pay the remaining $700 after he was released from jail.

When Volarvich was released from jail on November 16, defendant and Pina took Volarvich to defendant‟s house, where they "got high" on methamphetamine with Lindsey Montgomery, one of Pina‟s friends.

That afternoon, Volarvich and Pina gave defendant a ride to the Yolo County courthouse, where defendant attended a custody hearing regarding defendant‟s children with his estranged wife, Michelle. Michelle was living with Doug Shamberger, whom defendant "hated" and considered to be an "asshole." Defendant suspected that both Michelle and Shamberger had burglarized his house; and Shamberger had threatened defendant several times because Michelle paid periodic visits to defendant. In response to these threats, defendant bought a Taurus .357 magnum to protect himself from Shamberger.

On the way back to defendant‟s house following the custody hearing, defendant told Volarvich that he could "take care of" Shamberger as payment for defendant having bailed Volarvich out of jail. When Volarvich remarked that he "needed a piece," defendant replied he "had that taken care of." Volarvich asked: "[D]o you want Michelle done?" Defendant said no. Upon arriving at the house, the threesome again got high, and defendant gave Volarvich the .357 magnum Taurus revolver and $400 to pick up some more methamphetamine in Roseville.

At this point, Volarvich and Pina got into a heated argument. Volarvich called Montgomery, arranged to go to her house, and left defendant‟s house alone. He then picked up Montgomery and drove to a hotel in Rocklin. En route, Volarvich told Montgomery that defendant had given him a gun because defendant "wanted [Shamberger] taken out." After checking into a hotel room,*fn2 Volarvich pulled defendant‟s gun out of a black bag to show Montgomery and started playing with the revolving chamber. Later that night, Volarvich and Montgomery went to Wal-Mart, where Volarvich bought a laser sight. Back at the hotel room, Volarvich unsuccessfully attempted to attach the laser sight to the gun with electrical tape. He then tried to Super Glue the laser sight to the gun; this attempt also failed. Because Volarvich was afraid of sleeping past check-out time and being sent back to jail, he and Montgomery stayed up all night.

After leaving the hotel the morning of November 17, Volarvich and Montgomery went to a friend‟s house and smoked methamphetamine. They then drove back to Montgomery‟s house in Woodland. As Volarvich drove across the I-5 causeway, he pulled out the gun and started playing with the revolving chamber, spinning the chamber and loading it with bullets. Afraid she would get in trouble because Volarvich was playing with a gun while they drove down the causeway, Montgomery told him to put the gun down. Volarvich complied, placing it on the driver‟s side floorboard. They smoked more methamphetamine when they arrived at Montgomery‟s house.

Meanwhile, Pina was still at defendant‟s house. Furious that Volarvich had not returned with the methamphetamine he was supposed to buy the night before, defendant hit Pina in the head to rouse her from sleep and yelled that, because of her, Volarvich did not come back and that defendant "was out $400 plus the money for the bail bondsman." Unable to connect with Volarvich through his cell phone, Pina called Montgomery, told her that defendant had hit her because Volarvich had not returned, and asked if she had heard from him. Montgomery told Pina that she would "try to get ahold of him."

At Montgomery‟s request, Volarvich called Pina and told her that he was on his way to pick her up.

When Volarvich left Montgomery‟s house, he was "upset" that defendant had hit Pina. Volarvich brought the gun with him because "he was worried that it was going to be a setup" and he did not want to go back to jail. According to Montgomery, Volarvich believed that either defendant or the bail bondsman was setting him up because he had taken defendant‟s $400 without returning with the methamphetamine and had not met with the bail bondsman the day before to sign the bond paperwork.

Apparently on his way to defendant‟s house to pick up Pina, Volarvich used defendant‟s .357 magnum revolver to shoot and kill Officer Stevens, after Volarvich was pulled over by Stevens.

After the shooting, Volarvich called Montgomery, said that he "fucked up," asked if she could hear sirens, but hung up the phone before explaining further. When Volarvich called Montgomery back, he asked her to pick him up on El Dorado Drive. She agreed, borrowed a friend‟s car, and found Volarvich standing behind his car holding the license plate. Volarvich and Montgomery then switched cars and drove a short distance to Delta Drive, where they left Volarvich‟s car and returned to Montgomery‟s house. On the way to the house, Montgomery noticed that the black bag which had contained the gun was missing. When she asked Volarvich what had happened to it, he explained that he "had to get rid of the gun" and buried it near County Road 96 and County Road 24, which is precisely where the gun was found the next day. Montgomery also overheard Volarvich on the phone telling his mother that he had "shot the cop" but "didn‟t know if he was serious or not" and thought that "he was just tweaking." Volarvich then called two friends and secured a ride from Woodland to Roseville. During the drive, Volarvich again said he "had shot a cop," and added he did so because "he didn‟t want to go to jail."

When defendant told Pina an officer had been shot, she turned on the television and saw the news broadcast about the killing. She asked whether he had given Volarvich his gun. Defendant replied that Volarvich‟s "mentality was there."

Meanwhile, Montgomery received a call from Volarvich telling her to buy window decals to disguise his car. Acceding to Volarvich‟s request, Montgomery bought decals and window tinting from Wal-Mart, returned to Delta Drive to retrieve the car, and reattached the license plate that Volarvich had apparently removed. After receiving another call from Volarvich informing her where to meet him, Montgomery drove Volarvich‟s car back to the hotel in Rocklin.*fn3 There, Volarvich confessed to Montgomery, explaining that when he was pulled over by Officer Stevens, "he just turned and shot him." According to Volarvich, he was "scared" because he "didn‟t want to go to jail" and believed that being pulled over was part of a set-up orchestrated by the bail bondsman.

Volarvich and Montgomery were arrested at the hotel during the early morning hours of November 18, the same day that defendant was arrested after his house was searched and officers discovered a rifle, methamphetamine, and drug paraphernalia. During questioning, defendant confirmed the antagonistic relationship between himself and Shamberger, and admitted that he had purchased the Taurus .357 magnum revolver in order to protect himself from Shamberger. But he denied asking Volarvich to kill Shamberger and denied giving Volarvich the gun that killed Officer Stevens. According to his version of events, defendant merely showed Volarvich the gun the night before the shooting and discovered that it was missing the next morning.

DISCUSSION

I.

Defendant asserts that his murder conviction must be reversed because the shooting of Officer Stevens was not in furtherance of the conspiracy to kill Shamberger and "was both unforeseen and unforeseeable." Defendant is mistaken.

The law has been settled for more than a century that each member of a conspiracy is criminally responsible for the acts of fellow conspirators committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy, even though such acts were not intended by the conspirators as a part of their common unlawful design. (People v. Medina (2009) 46 Cal.4th 913, 920; In re Hardy (2007) 41 Cal.4th 977, 1025-1026; People v. Smith (1966) 63 Cal.2d 779, 794; People v. Harper (1945) 25 Cal.2d 862, 870; People v. Kauffman (1907) 152 Cal. 331, 334 (hereafter Kauffman); see also Pinkerton v. United States (1946) 328 U.S. 640, 647-648 [90 L.Ed. 1489, 1496-1497] (hereafter Pinkerton).)

Recognizing that criminal agency poses a greater threat to society than that posed by an independent criminal actor, the law "seeks to deter criminal combination by recognizing the act of one as the act of all." (People v. Luparello (1986) 187 Cal.App.3d 410, 437; see also People v. Zacarias (2007) 157 Cal.App.4th 652, 658 ["conspiracy to commit a target offense makes it more likely that additional crimes related to the target offense will be committed"].) "In combining to plan a crime, each conspirator risks liability for conspiracy as well as the substantive offense; in "planning poorly,‟ each risks additional liability for the unanticipated, yet reasonably foreseeable consequences of the conspiratorial acts, liability which is avoidable by disavowing or abandoning the conspiracy." (People v. Luparello, supra, 187 Cal.App.4th at p. 438.)

The question whether an unplanned crime is a natural and probable consequence of a conspiracy to commit the intended crime "is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, [the unplanned crime] was reasonably foreseeable." (People v. Medina, supra, 46 Cal.4th at p. 920.) To be reasonably foreseeable """[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . ." [Citation.]‟" (Ibid.) Whether the unplanned act was a "reasonably foreseeable consequence" of the conspiracy must be "evaluated under all the factual circumstances of the individual case" and "is a factual issue to be resolved by the jury" (ibid.), whose determination is conclusive if supported by substantial evidence. (Kauffman, supra, 152 Cal. at p. 335; People v. Luparello, supra, 187 Cal.App.3d at p. 443.)

Properly treating the issue as a question of fact, the trial court instructed the jury with CALCRIM No. 417.*fn4 After requesting clarification on the meaning of certain language in the instruction ("in order to further the conspiracy" and "likely to happen if nothing unusual intervenes"), the jurors informed the trial court that they had reached verdicts on all counts except the murder charge alleged against defendant.

The trial court then allowed the parties to present supplemental closing arguments focusing solely on whether the murder of Officer Stevens was committed in furtherance of, and followed as a probable and natural consequence of, the conspiracy. The People argued the murder furthered the goals of the conspiracy because, in order to successfully murder Shamberger, one of the goals of the conspiracy had to be to avoid detection; and the murder was a natural and probable consequence of the conspiracy because "a reasonable person would foresee that there would be police intervention" at some point during the execution of the plot to kill Shamberger, and defendant, with actual knowledge of Volarvich‟s "volatile and unstable" nature, gave him the gun to carry out the murder. Defendant‟s attorney argued no conspiracy existed between defendant and Volarvich; being pulled over by an officer on a country road in Woodland constituted an "extremely unusual" event, the ...


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