People v. ZIELESCHPeople v. ZIELESCH
Opinion
Thе 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 Stеvens 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 years 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
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 coldblooded 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 detained by a law enforcement officer before the assassination was completed, it was 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 solеly 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 Volarviсh 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.
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 cosign 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 prоtect 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’s 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,
1
Volarvich pulled defendant’s gun out of a black bag to show Montgomery and started playing with the revolving chamber. Later that 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 1-5 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 Volаrvich 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 сalled 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
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 licensе 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. 2 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 setup 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 wаs 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.
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)
Recognizing that criminal agency poses a greatеr 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)
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,
Properly treating the issue as a question of fact, the trial court instructed the jury with CALCRIM No. 417. 3 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 аgainst 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 intervention of which rendered Officer Steven’s death not a natural and probable consequence of the alleged conspiracy; and Volarvich killed Officer Stevens because “he did not want to go to jail,” not because of a conspiracy to kill Shamberger.
As he did in the trial court, defendant claims the murder of Officer Stevens “was both unforeseen and unforeseeable.” We conclude the jury’s contrary finding is supported by substantial evidence. The object of the conspiracy between defendant and Volarvich was to end the life of defendant’s nemesis with the .357 magnum revolver supplied by defendant for that purpose. Defendant knew Volarvich had a proclivity for using methamphetamine, having used the drug with Volarvich the night before he gave him the gun to carry out the hit, and having given Volarvich $400 to purchase more methamphetamine. Defendant admitted knowing Volarvich had an unstable personality; after receiving news of Officer Stevens’s murder, defendant told Pina that Volarvich’s “mentality was there.” Defendant also had reason to know that Volarvich, who was on searchable probation, would be taken into custody if a lаw enforcement officer detained him and found the gun. From these facts, the jury could find that a natural and probable consequence, i.e., a reasonably foreseeable “possible consequence” of defendant’s conspiracy with assassin Volarvich to murder Shamberger
(People v. Medina, supra,
Indeed, given defendant’s knowledge of Volarvich’s unstable mental state, use of methamphetamine, and desire not to return to jail, we conclude the prospect that defendant’s arming Volarvich with defendant’s .357 magnum revolver to assassinate Shamberger would lead to the shooting of a law enforcement officer is just as foreseeable as was the murder that the California Supreme Court recently held to be the natural and probable consequence of a “failed assault” by gang members who had been disrespected by a rival gang member. (People v. Medina, supra, 46 Cal.4th at pp. 923-925.)
Defendant’s argument that the murder of Officer Stevens with defendant’s gun was not “in furtherance of the charged conspiracy” does not benefit him for two reasons. First, a natural and probable consequence of a conspiracy need not be an act in furtherance of the conspiracy; it simply must be a “ ‘reasonably foreseeable consequence of the [intended crime] aided and abetted.’ [Citation.]”
(People v. Medina, supra,
Defendant points out “there appear to be no cases like this one,” and posits the reason for the dearth of appellate decisions dealing with this factual scenario is “this case is far outside the scope of Kаuffman and Pinkerton.” (See
Kauffman, supra,
II-IV *
V
We also reject defendant’s claim that his right to a fair trial was infringed because, for a period at the start of trial, the judge allowed courtroom spectators to wear buttons displaying a photograph of Officer Stevens.
On the first day of trial, Wednesday, February 13, 2008, Volarvich’s counsel brought to the court’s attention that “some folks in the audience are wearing buttons, which fairly bear the image of Officer Stevens.” Understanding their desire to “express their sympathy for Officer Stevens and his family,” counsel voiced concern that the buttons “may have some undue influence on the jurors.” Thus, counsel asked the court to “direct folks, if they are going to be members of the audience, to please remove those buttons.”
The following day, Thursday, February 14, 2008, outside the jury’s presence, the trial judge described the button: “It is about two to two-and-a-quarter inches in diameter. It is a color photograph of Officer Stevens. I can’t tell if he’s in uniform or not. It is from chest level up showing primarily his face with the American flag in the background. And then it says Officer Andrew Stevens.” The judge then allоwed counsel to address the issue. Citing the United States Supreme Court’s decision in
Carey
v.
Musladin
(2006)
Accordingly, the judge framed the issue as “whether or not the communication from members of the audience is in any sense coercive or intimidating so that it might affect the decisions that the jury has to make in this case.” In this regard, the judge observed that the buttons did not relate “overtly to the subject matter of this trial” and served only as “a memorial or an expression of sympathy” for Officer Stevens and his family. The judge also noted that such an expression of sympathy was not inconsistent with the defense of either Volarvich or defendant as both defense attorneys, in opening statements, described the death of Officer Stevens as “tragic or sad,” and neither suggested that the death was not a “homicide of some sort.”
Thus, the judge “decided [to] follow a suggestion that was made [in
People
v.
Houston
(2005)
The judge also set a deadline after which the buttons would no longer be worn “so that there won’t be any ongoing [ejffect on the jurors.” Outside the presence of the jury, the judge informed the audience that, beginning Tuesday, February 26, 2008, the buttons would no longer be allowed into the courtroom. Prior to the court-imposed deadline, the jury was exposed to the buttons bearing Officer Stevens’s likeness on the first six days of an eight-week trial.
B
Defendant contends the trial court’s “failure to stop the wearing of the buttons when first requested by the defense was error” that deprived him of his right to “a trial before an impartial jury untainted by an inflammatory courtroom atmosphere.” We disagree.
“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.”
(Estelle v. Williams
(1976)
On the other hand, allowing some courtroom spectators to wear commemorative buttons depicting the likeness of a fallen officer is not unduly suggestive of guilt. Defendant’s claim to the contrary is an insult to the intelligence, integrity, and resolve of jurors. Here, there is no reason to believe that the jurors, when faced with the image of a fallen officer, would be unable or unwilling to bаse their verdict solely on the evidence presented during the trial.
Moreover, jurors were instructed by the court to disregard the buttons, to not allow sympathy for Officer Stevens to play a role in their decision regarding the guilt or innocence of either defendant, and to base their verdict solely on evidence presented during the trial. We presume that the jury followed this admonition.
(People
v.
Houston, supra,
Consequently, we conclude the wearing of the buttons presented no “probability of deleterious effects” on the defendant’s right to a fair trial.
(Estelle
v.
Williams, supra,
VI, VII *
The judgment is affirmed.
Nicholson, J., and Robie, J., concurred.
On December 3, 2009, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 10, 2010, S178863. Kennard, J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.
Notes
Volarvich and Montgomery were not old enough to rent the hotel room. Thus, Volarvich called an older friend, Ryan Nicholson, and arranged for Nicholson’s girlfriend, Erin Owen, to rent the room in exchange for gas money.
Volarvich again rented the hotel room through Nicholson and Owen, and told them he “killed an officer” and that he “fucked up” and “blasted him in the face.” He also told Nicholson that the reason he shot Officer Stevens was that he “didn’t want to go back to jail.”
CALCRIM No. 417, as given to the jury in this case, provides: “A member of a conspiracy is criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probаble consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. [ft] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence, [ft] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan, [ft] To prove that defendant Gregory Fred Zielesch is guilty of [the murder of Officer Stevens], the People must prove that: [ft] One, defendant Gregory Fred Zielesch conspired with defendant Brendt Volarvich to commit the murder of Doug Shamberger; [ft] Two, Brendt Volarvich, as a member of the conspiracy to murder Doug Shamberger, committed the murder of Andrew Stevens in order to further the conspiracy to murder Doug Shamberger; and [ft] Three, the murder of Andrew Stevens was a natural and probable consequence of the common plan or design of the crime that both defendants Zielesch and Volarvich conspired to commit.”
See footnote, ante, page 731.
See footnote, ante, page 731.