Trial Court: Humboldt County Superior Court Trial Judge: Hon. Timothy P. Cissna (Humboldt County Super. Ct. No. CR083634)
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Chad Andrew Larsen was convicted following a jury trial of conspiracy to commit murder and solicitation to commit murder. The trial court sentenced him to 25 years to life for the conspiracy conviction, and a concurrent nine-year term for the solicitation conviction. He contends the trial court infringed on his constitutional right to present a defense by failing to give an instruction on mental disorder and intent, failed to give instructions on entrapment and the criminal liability of his coconspirator, and erred by denying his motion to recuse the entire prosecutor's office prior to sentencing.
We conclude that the trial court committed error by refusing to give the CALCRIM No. 3428 instruction on evidence of mental disorder and intent. The instructional error was, however, not prejudicial. We find that no other errors were committed. We therefore affirm the judgment.
In January of 2008, defendant was arrested and subsequently charged with felony violations of unlawful sexual intercourse and oral copulation with a minor (Pen. Code, §§ 261.5, subd. (c)), 288a, subd. (b)(1)), 16-year-old Jane Doe.*fn2 While defendant was held in the Humboldt County Jail awaiting trial, his father, Dennis Larsen (Dennis) regularly visited him. To avoid the recording devices on jailhouse phones, defendant would often communicate with Dennis by holding up handwritten notes to the glass partition in the visiting room.
During the first visit defendant told Dennis he "wasn't guilty of what he was charged with," and did not want the case "to go forward." Defendant expressed apprehension to Dennis that should Jane Doe testify against him, he would be convicted.*fn3 He hoped she would not testify because he feared going to prison and being required to register as a sex offender.
Dennis soon realized that defendant "had had sex with a minor." Defendant "was very concerned about scientific evidence" that may "support the charge against him of . . . statutory rape." He repeatedly asked Dennis to "wipe down the front seat" of his truck by rubbing a "tri-tip roast" into the seat to eliminate "DNA evidence" linking him to Jane Doe. Dennis complied, using a towel soaked in tri-tip or other meat juice.
Evidence was presented that defendant contacted several fellow jail inmates with proposals to kill Jane Doe to prevent her from testifying at trial. Between February and June 2008, at defendant's request Dennis sent two $500 money orders to two Humboldt County Jail inmates at different post office boxes, each addressed to "our friend."
Defendant also approached fellow Humboldt County Jail inmate Scott Schwartz with a scheme for him to go to the victim's residence, kick the door in, "pretend [to be] police and kill everybody in the house so she couldn't testify." In May of 2008, defendant enlisted Dennis to pay Schwartz, who by then had been released from jail, $1,500, and give him a ride to San Francisco, in exchange for carrying out the murder of Jane Doe.*fn4 Dennis gave Schwartz the money and drove him to San Francisco, but Schwartz failed to perform the murder, and subsequently tried to blackmail Dennis and defendant.
On several occasions defendant offered another inmate he met in the "same tier" of the county jail, William Lenard, money to kill Jane Doe to prevent her from testifying. Defendant referred to the victim as a "little drug addict whore that didn't deserve to live," and feared that he "would be sent to prison for a long time" if convicted. Over the course of two weeks, defendant first offered Lenard $1,500, then raised the price to $2,000, to "make sure his witness couldn't testify." Lenard finally told defendant, "I don't want to hear it no more."
Lenard testified that he overheard defendant talk to "other people" in the common area of the facility, one of them Schwartz, "about having the victim killed" and burying her on property he owned. Defendant often discussed "different ways" they could kill the victim and "get away with it," and mentioned that if the victim "can't show up," they "don't have a case." When he was released from custody in May 2008, Lenard reported defendant's murder proposals to his probation officer and a district attorney investigator.
Brian Ekker was defendant's cell mate in Humboldt County Jail. Defendant told Ekker that he was "worried about" Jane Doe's testimony. Defendant wanted to pay someone "on the outside" to "get rid of her" so she "would not testify." He offered Ekker $1,000 and a "broken down three wheeler" to kill Jane Doe. Defendant suggested Ekker drive by Jane Doe and shoot her. Ekker refused the offer. Ekker testified that defendant told him he had asked other inmates, including Schwartz, to murder Jane Doe, but they "took the money" and failed to do the job.
In late April or early May 2008, defendant met inmate Carlton Wallace in the jail. Defendant told Wallace he feared being convicted, and had offered Jane Doe money not to testify, to no avail. Defendant asked Wallace to murder Jane Doe for money. Defendant offered Wallace $5,000, saying Dennis would give him the money. Defendant told Wallace if he murdered Jane Doe he also could be defendant's partner in a marijuana growing operation he was planning on his father's farm. Wallace believed defendant's proposal was serious.
Defendant suggested that Wallace befriend Jane Doe, who defendant claimed was a drug addict, and give her a bag of "bad drugs" to kill her. According to defendant's plan, Wallace would then take her body to Dennis's farm on Port Kenyon Road in Ferndale. Wallace would place the body in a trough tied down with straps, pour concrete over the body, and deposit it under a concrete slab on the property. Defendant drew detailed maps showing where Jane Doe lived and gave them to Wallace. He also gave Wallace a detailed description of Jane Doe and wrote out detailed, step-by-step instructions for Wallace to carry out the murder plan. Defendant provided blueprints of the ranch showing Wallace the location of the materials defendant wanted him to use to conceal the body. Wallace, who was due to be released soon, was to contact Dennis and tell him "I was the guy that would carry out the . . . plan." Defendant also directed Wallace to tell Dennis to visit him in jail immediately.
In what Wallace described as "the final plan," he was to meet with Dennis to receive $200 and a "bag of bad drugs" to be given to Jane Doe. Once he received the drugs, Wallace was supposed to convince Jane Doe to call her mother and say she was going to San Francisco for a week or two with some friends and "didn't want to be bothered," and post a similar message on her "My Space page." Wallace was then to remove the battery from Jane Doe's cell phone, and tell her to accompany him to San Francisco to bring "back some drugs to Humboldt," in exchange for drugs and cash she would receive. Wallace was to give Jane Doe tainted drugs "that was supposed to kill her." If that "didn't kill her," Wallace was directed to snap her neck with "four pounds of pressure" necessary to "break someone's neck."
After Jane Doe was dead, the plan called for Wallace to take the body to the Ferndale farm where he would find shovels to dig a hole, a trough, some tie-down straps, and some fast-drying concrete. Defendant said he would arrange through Dennis to have the shovels and other materials there. Wallace was to strap Jane Doe's body into a fetal position with the tie-down straps to make her more compact to fit into the trough, fill the trough with concrete, and bury it under a concrete slab, covering the hole with debris. Defendant told Wallace he would wait a year or two after he was released, dig up the body, put it in his boat, and dump it in the ocean. Defendant professed to Wallace that "he'd be safe," and they would both "be rich" marijuana growers.
Defendant drafted a "blueprint of everything" for Wallace, including a drawing of the trough and a note stating exactly what Wallace was to say to Dennis. The note read as follows: "I know who your son knows and have spent two months with him. I'm the friend he mentioned. . . . To further your son's, yours, and my own goals, I am going to need seed money and for your―and for you to gather enough QUIKRETE to have fill that gray trough so that I may build a support and the cement ramp and fill the hole. I have legitimate need myself to do this, and I will do it. I have no wire, no blackmail, and certainly no mistakes. This is the only and last time this will be talked about. And Chad is the one who will pay me when I'm out. Chad's case will be dismissed when his witness runs away to Mendocino." Defendant also provided Wallace with a picture of his dog "Wuffle" to give to Dennis, "a picture that he knew his son wouldn't part with."
Wallace believed he was being set up to take the blame for the murder. He revealed defendant's plan to his attorney, Glenn Brown, and told Brown he did not want to be involved. Brown reported the matter to the district attorney's office, which sent Chief Investigator Hislop and two other investigators to interview Wallace. Wallace provided the investigators with some or all of the writings he received from defendant, presumably the detailed instructions and maps, plus a picture of a dog.
The investigators fitted Wallace with a recording device. Wallace recorded a conversation in which defendant again detailed the murder plot. In the recorded conversation, defendant tells Wallace: "[W]hat I was thinking is you go into my dad's garage . . . . You grab three tie-down straps . . . . And the three tie-down straps, you put 'em, you put her feet in . . . fetal position. You tie one around one knee, one around her shin, and you crank down." Wallace asks, "While she alive?" Defendant replies, "Fuck no. When she's dead. You crank down, crank down, crank down. Get her as small as possible, right?" He continues by saying that once Jane Doe was "compact" Wallace would put her in the "tub"―presumably the trough―in the bottom of the hole ("put her one thirty pound ass in"), then fill it with concrete. Wallace asked what he should do if there were no concrete at the farm. Defendant replied, "I'll . . . just have dad go get it."
On June 12, 2008, Wallace was released from the Humboldt County Jail, but was transferred to the Del Norte facility so defendant would think Wallace had been released from custody. At 11:00 that morning, Wallace called Dennis as defendant had directed and identified himself as Carl, someone who knew defendant. Wallace told Dennis to visit defendant in the jail immediately.
Dennis and Roy Potvin, a longtime family friend, visited defendant at the jail on June 12. Defendant held up a piece of paper for Dennis with Wallace's name and phone number and told Dennis he must give Wallace $500 immediately. Dennis testified this note read, "You must pay this man $500 and here's a phone number. You must call this. Don't forget." Apparently, the note stated in large bold letters, "Last Time."
Despite Dennis's testimony on the content of the note defendant displayed to him during the visit on June 12, the record is less than clear on the exact text of the note. Wallace testified regarding two other notes which defendant may have held up during a visit with Dennis. One note read: "To show he's legit, Carl will dig under the ramp behind the barn to put in the new foundation. Cash in McKinleyville. Buy five bags of Quickrete. Hand Carl shovels, the gray three-layered trough, five-gallon buckets, a heavy chain, and three heavy duty, tie-down straps. . . ." Another note read: "This is the final time. I go to court on Friday, 13th. I need my problem fixed. He knows my problems, friends. Talk to him. Give him $500 from my bank account so he can buy supplies to build a cement support under the ramp."*fn5
On the afternoon of June 12th, Dennis went to the credit union, as defendant asked, to withdraw $1,000―$500 to pay some bills and $500 for "Carl."*fn6 Later that day, Dennis received a second call purportedly from Carl, who this time was Probation Officer Greg Allen posing as Carlton Wallace. "Carl" told Dennis he needed shovels and $500. Dennis suspected there was going to be "a hit," and someone may be killed. He expressed concern to friends that defendant was trying to have Jane Doe killed.
Nevertheless, Dennis participated in the scheme described to him by the man he thought was defendant's friend Wallace. Dennis and Potvin went to a hardware store where Dennis bought two shovels, some tape, and some permanent markers. They then went to Dennis's ranch in Ferndale, and left the two shovels and $500 in an envelope next to the mailbox for Wallace. Dennis put a note in the envelope telling Wallace he would receive no more money. Dennis received a call from "Carl," and told "Carl" the items were waiting for him.
Dennis received several more calls from "Carl" which were recorded by investigators. "Carl" spoke in detail about the murder plot. Dennis became uneasy and upset when "Carl" requested help to bury a body behind the barn, and told "Carl" that "the deal is off." Dennis realized that "this person" intended to enlist his assistance in the commission of a murder, and went to the Ferndale property to attempt to retrieve the shovels and money―which were gone, having been removed by investigators.*fn7
For "damage control" and to "cover his ass," Dennis reported the possible murder plot against Jane Doe to the Ferndale police at 5:00 that afternoon, and gave a voluntary statement to Investigator Hislop and another officer. Dennis was later arrested, and ultimately entered a plea of no contest to solicitation to commit murder (§ 653f, subd. (b)) and being an accessory to a crime (§ 32). Hislop subsequently interviewed Schwartz, who told him Dennis was part of the conspiracy to murder Jane Doe.
Defendant testified on his own behalf. He admitted a prior conviction for "consensual 'sexual intercourse with a minor' " (§ 261.5, subd. (c)), and his 2009 convictions for sex offenses with Jane Doe.*fn8 He did not contact Jane Doe after January of 2008.
Defendant denied that he paid Jane Doe any money, or ever personally or through Dennis contacted her parents or boyfriend to seek to prevent her from testifying against him. He never threatened her or her family. He never asked anyone to kill Jane Doe so she would not testify. The $500 payments that Dennis described making to various jail inmates had nothing to do with Jane Doe, but were payments for protection from physical assault inside the jail.
Defendant had problems growing up, including learning disabilities, and was not liked by his teachers or his classmates. As his problems continued in high school, his teachers recommended counseling. His counselors referred him to psychologists.
Rather than socializing with others, defendant kept to himself and played video games or computer role-playing games, like Dungeons and Dragons and Pools of Radiance, that were derived from comic books. The comic books were all based "on female heroines combating crime, defeating the bad guys using friendship and teamwork."
During high school, defendant spent more time participating in role-playing games, and made some friends "who liked to role play" on a serious level. Defendant testified that in role playing there is always a "game master" who defines the mission and the scenarios and takes command of the game.*fn9
While in county jail, defendant made two payments of $500 through Dennis to a fellow inmate Fred Schallenberg for protection. Defendant also approached Schwartz for protection from "an inmate named Josh Cooly" who repeatedly threatened to stab him. In exchange, defendant gave Schwartz food from his tray and "bought him commissary." He also socialized with Schwartz; they read defendant's comic books. Defendant testified that the $1,500 he paid to Schwartz was for a motorcycle and a ride to the Delancey Street program, not to kill Jane Doe.
Defendant met Wallace in jail through Schwartz. Defendant and Wallace exchanged information on their cases and people they knew in common, including Jane Doe and her friends Lindsay and Sarah. Wallace told defendant he was their "drug dealer."
Defendant grew to trust Wallace, and they discussed a future marijuana cultivation operation on defendant's property in Ferndale to be run by Wallace when they were released. The $500 defendant asked Dennis to give Wallace was for a soil analysis of the planned marijuana farm.
Defendant and Wallace began to engage in discussions about "role playing" related to their cases and "things that [they] knew in real life," such as "keeping a witness from testifying." He and Wallace engaged in "lots" of role-playing games. Wallace was the acknowledged "game master," who orchestrated the role playing by giving defendant verbal or body language cues.*fn10 Wallace threatened that he would not participate in the marijuana cultivation venture unless defendant followed his role playing signals.
Their discussions about Jane Doe were not related to an actual conspiracy to kill her, but rather merely part of their role-playing games in which defendant and Wallace invented various scenarios based on comic book stories and role-playing books defendant had in jail. Defendant explained: "The quotes, the scenarios, some of the characters' names such as Deacon, Sarah, ...