(Super. Ct. Nos. 62-064573A and 62-064573D)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Donald Hugh Sherman and Peter Daniel Schoemig killed Guy Farmer. Separate juries convicted them of first degree murder. (Pen. Code, § 187, subd. (a).)*fn1
Schoemig's jury acquitted him of torture (§ 206) and found not true the special circumstances of murder by torture (§ 190.2, subd. (a)(18)) and murder by poison (§ 190.2, subd. (a)(19)).
Sherman's jury, in addition to convicting him of first degree murder, convicted him of torture (§ 206), a drug offense (Health & Saf. Code, § 11378), and nine counts of possession of a firearm by a felon. (Former § 12021, subd. (a)(1).) His jury found true the special circumstances of murder by torture (§ 190.2, subd. (a)(18)) and murder by poison (§ 190.2, subd. (a)(19)), an allegation that he was personally armed (§ 12022, subd. (c)), and allegations of prior drug convictions. (§ 1203.07, subd. (a)(11); Health & Saf. Code, § 11370.2, subd. (a).)
The trial court sentenced Schoemig to state prison for a term of 25 years to life.
The court sentenced Sherman to state prison for "25 to life without the possibility of parole" for the special circumstances first degree murder conviction, a consecutive indeterminate term of life for the torture conviction, and an additional 17 years eight months for the remaining offenses and enhancements.
In his appeal, Schoemig contends:
(1) insufficient evidence supports his first degree murder conviction;
(2) the court erred by denying his request for a pinpoint instruction that duress could negate the element of premeditation;
(3) the court abused its discretion by excluding hearsay evidence he claims qualified as a statement against penal interest;
(4) insufficient evidence supported the trial court instructing his jury on the prosecution's theory of murder as a natural and probable consequence of aiding and abetting felony false imprisonment by violence or menace;
(5) the court erred by instructing his jury on duress as a defense against the natural and probable consequences theory of murder by using a confusing and contradictory instruction; and
(6) the court erred by not expressly linking its instructions on the lesser included offenses of second degree murder and involuntary manslaughter to the natural and probable consequences theory of murder.
In his appeal, Sherman contends:
(1) the trial court improperly instructed his jury on consciousness of guilt based on the destruction of evidence by third parties (CALCRIM No. 371);
(2) the court wrongly denied his request for a pinpoint instruction on third party culpability; and
(3) by instructing the jury on consciousness of guilt based on false or misleading statements (CALCRIM No. 362) and a third person's acts to suppress evidence (CALCRIM No. 371), and by denying his request for a pinpoint instruction on third party culpability, the court used impermissible pinpoint instructions and denied him the benefit of impartial instructions.
None of the defendants' contentions has merit. However, we must modify Sherman's sentence on the special circumstances first degree murder count to reflect the term prescribed by law, which is life without possibility of parole, not "25 to life without the possibility of parole." With that lone modification, we affirm the judgments.
On Labor Day weekend 2006, a group of friends and acquaintances, associated through their usage and dealing of drugs, converged on defendant Sherman's residence in Penryn. The residence included a house and a detached garage that contained a separate room that served as an office. Sherman was a drug dealer, and the victim, Guy Farmer, was a drug user and a participant in Sherman's drug business. He was also Sherman's cousin. In the group was defendant Schoemig, who had met Sherman through a mutual drug connection.
During the weekend, Sherman became angry when he discovered that chemicals used for making illegal drugs, purportedly worth hundreds of thousands of dollars, were missing. He suspected Farmer and Schoemig and accused them, but both denied taking them. Several of the group searched unsuccessfully for the chemicals.
Sherman threatened Farmer that, if he did not tell where the chemicals were, Sherman would call someone to interrogate him. Acting on the threat, Sherman called Lawrence Macken of Stockton in the early morning hours of Tuesday, September 5. One day later, at approximately 12:30 a.m. on Wednesday, September 6, three men arrived at Sherman's residence: a tall man named Lawrence, a short man, and a heavy-set man (the interrogators). Sherman told some of those remaining at the residence that he had called these men to interrogate Farmer.
Sherman spoke with the three men and pointed out Farmer, who was intoxicated, and Schoemig as the ones to be interrogated, although it does not appear that Schoemig ever became the subject of interrogation. The men in the group went into the garage, and the women were told stay in the house with the children.
The interrogators questioned Farmer. He denied knowing where the chemicals were, so they hit him in the face and head with their fists. Farmer was afraid and urinated on himself. When Farmer swore that he did not know where the chemicals were, the men kicked and stomped on him, including kicking him in the chin.
The men hit Farmer in the knees and chest with hammers and threatened to cut off his fingers. Sherman and Schoemig demanded that Farmer reveal the whereabouts of the chemicals, while Farmer screamed and vomited.
Farmer threatened to call the police and tell what the men had done to him. He tried to use a phone, but the interrogators stopped him. Sherman was concerned that Farmer had called the police. The interrogators gagged Farmer, and tied him up with ropes provided by Schoemig. As Farmer lay on the ground in the fetal position, the interrogators tied his hands in front of his crotch.
Sherman gave the interrogators some crystal methamphetamine to give to Farmer to wake him up. Schoemig administered the injections, three in all.
Sherman lit a blow torch and gave it to the interrogators. They burned the ropes around Farmer's wrists and, in the process, burned Farmer's crotch. They also burned Farmer's steel-toed boots. Farmer yelled for Sherman, but Sherman continued to demand to be told where the chemicals were. Farmer's feet caught fire, and he vomited profusely. Finally, Farmer said that he took the chemicals.
Sherman and Schoemig went into the office and prepared another injection of methamphetamine. Back in the garage, Farmer was unconscious, so the men covered Farmer with a tarp and returned to the office to use methamphetamine.
Later Wednesday morning, Sherman spoke to one of the women about what had happened to Farmer in the garage and said that Farmer had to be revived three times. Sherman also said that Farmer deserved what happened and that Farmer had threatened to call the police.
Mid-morning on Wednesday, Sherman paid the interrogators, and, before they left, one of the interrogators told some of the people at the residence, including Schoemig, to make Farmer disappear within 48 hours. The interrogators threatened the group that the same thing would happen to them.
Wednesday night, someone did Internet searches on Sherman's home computer concerning pharmaceuticals.
In the early morning hours of Thursday, September 7, one of the men heard noises coming from the garage. Sherman grabbed a handgun; Schoemig picked up a shotgun; they went to the garage, along with some of the other men who were at the residence. One of the men in the group entered through a window in the office area, and then let some of the men in through the office door that had been locked by Farmer. At the same time, Sherman entered the garage after he opened the garage door by using a keypad on the exterior of the garage. Farmer, who was not armed, ran to a truck inside the garage and locked himself in the cab.
Sherman pointed the handgun at Farmer and told him to get out of the truck. Farmer complied and lay down on the floor, pleading with Sherman not to kill him. The men retied Farmer and gagged him.
Sherman and Schoemig went into the house, where they retrieved duct tape, a bandana, and handcuffs. Sherman also went into his master bathroom where he stored his own prescribed pain medications. They took the items back to the garage.
Schoemig crushed more methamphetamine and told Sherman that he needed to decide what to do with Farmer. Sherman replied: "Well, you know what's got to be done." Schoemig injected something into Farmer, after which Farmer snored loudly, a sign of opiate overdose.
The men again left Farmer in the garage, and Schoemig told at least one of the other men that they had given Farmer more drugs. Schoemig checked on Farmer twice during the next couple of hours. After checking on Farmer the second time, Schoemig returned to the residence to report that Farmer was dead.
The group had already decided to take Farmer's body to an abandoned mine in Nevada. Early Thursday morning, Schoemig and one of the other men took Farmer's body in Sherman's truck to the mine, placed the body in the mine, and detonated some explosives. They washed and waxed the truck in Reno.
Schoemig headed back to Penryn, but was pulled over for speeding. The truck was impounded because Schoemig did not have a valid license, so Sherman and Michael Dockins drove to the Donner Summit area to retrieve Schoemig and the other man. On the ride back to Penryn, Schoemig told Sherman that everything had gone fine.
On Friday, and on Sherman's orders, Schoemig and another man thoroughly cleaned Sherman's garage, including tools and equipment, using water and bleach. Sherman specifically ordered Schoemig to wipe down the blood splatter. Several days later, some of the other men disposed of rags with vomit and blood. Sherman and Dockins disposed of a tarp from the garage in a dumpster in Sacramento. In October, Sherman had Schoemig remove tiles from the garage floor. Despite the thorough cleaning of the garage, a search revealed a blood stain containing Farmer's DNA.
Farmer's body was found in the abandoned mine near Reno on October 3, 2006, about a month after the murder. An autopsy revealed that Farmer died of homicidal violence. He may have died of either (1) strangulation or asphyxiation or (2) lethal injection. Traces of methamphetamine, diazepam (Valium), hydromorphone (Dilaudid), tramadol (Ultram), and amphetamine were found in his blood. Sherman had been prescribed diazepam, hydromorphone, and amphetamine.
Several of Schoemig's contentions on appeal arise from the prosecution's argument at trial that Schoemig was guilty of first degree murder based on a natural and probable consequences theory. That theory was that first degree murder was the natural and probable consequence of Schoemig's aiding and abetting the crime of false imprisonment by violence or menace. Schoemig contends the court erred by instructing on the theory, instructing on how the defense of duress could apply to the theory, and not instructing on lesser-included murder offenses which the jury could reach by applying the theory.
Before addressing these contentions, however, we analyze the trial court's instructions and conclude that the natural and probable consequences theory as stated in the instructions, which we presume the jury followed, applied only to second degree murder. Because the jury convicted Schoemig of first degree murder, not second degree murder, it could not have relied on the natural and probable consequences theory. Hence, any instructional error concerning the unutilized natural and probable consequences theory was harmless beyond a reasonable doubt.
Therefore, to provide a basis for our discussion of Schoemig's contentions on appeal, some of which assume that the jury convicted Schoemig of first degree murder based on the natural and probable consequences theory, we first explain why the jury did not rely on the natural and probable consequences theory to convict Schoemig of first degree murder.
The prosecution argued at least four different theories of first degree murder against Schoemig: (1) murder by poison; (2) willful, deliberate, and premeditated murder; (3) felony murder (torture); and (4) the above-mentioned theory of aiding and abetting false imprisonment by violence or menace, the natural and probable consequence of which was murder.
The jury did not specify the theory on which it based Schoemig's first degree murder conviction. However, the jury acquitted Schoemig of torture and found not true the special circumstance allegations of murder by torture and murder by poison. Schoemig argues that, as a result of the jury's findings as to torture and poisoning, the jury could not have convicted him of first degree murder under any theory other than the natural and probable consequences theory. The argument is unconvincing. As we explain, the jury could not have followed the trial court's instructions and found Schoemig guilty of first degree murder based on the natural and probable consequences theory. Later, in connection with Schoemig's sufficiency-of-evidence argument in part I, we conclude the jury validly based its conviction for first degree murder on either murder by poison; willful, deliberate, and premeditated murder; or both.
The court's instructions did not allow the jury to convict Schoemig of first degree murder under the natural and probable consequences theory, the ...