People v. Fagone, F052358 (Cal. App. 4/28/2009), F052358
| Decision Date | 28 April 2009 |
| Docket Number | F052358 |
| Court | California Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAMES FAGONE, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Fresno County, No. F03904715-0, Wayne Ellison, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
On September 25, 2003, an information was filed in Fresno County Superior Court, charging appellant James Fagone with murder (Pen. Code,1 § 187, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2), residential burglary (§§ 459, 460, subd. (a); count 3), and torture (§ 206; count 4). Financial-gain, lying-in-wait, torture, kidnapping-felony-murder, and burglary-felony-murder special circumstances (§ 190.2, subd. (a)(1), (15), (17) & (18)) were alleged with respect to count 1.2 During trial, the financial-gain, lying-in-wait, and torture special circumstances were stricken, and count 4 was dismissed, at the prosecutor's request. On December 12, 2006, the jury returned verdicts convicting appellant of first degree murder and first degree burglary, but acquitting him of kidnapping. Jurors further found true the burglary-murder, but not true the kidnapping-murder, special circumstance. Appellant was sentenced to life in prison without the possibility of parole and ordered to pay restitution, as well as various fees and fines, and he filed a timely notice of appeal. For the reasons that follow, we will strike the parole revocation fine, but otherwise affirm.
As of July 2003, Timothy Schuster and his wife, Larissa, had been separated for approximately two years and were going through a contentious divorce.3 One source of conflict was the fact that Timothy owned 49 percent of Larissa's business, Central California Research Laboratory (CCRL); thus, according to what Larissa told Leslie Fichera, a chemist at CCRL, Timothy was entitled to 49 percent of the business's worth. This upset Larissa, who felt like she had started the business and that Timothy was not entitled to any of it. Larissa occasionally talked to Joseph Boatwright, a CCRL employee, about her feelings toward Timothy. At one point, she asked Boatwright whether he knew anyone who would kill Timothy. Boatwright thought she was joking, although he knew she hated Timothy.
CCRL, which was located near Shaw and 99, was an agricultural laboratory involved in researching and analyzing pesticides, crops, soils, and the like. Occasionally, various types of acids were used in some of the tests, but, by Fichera's estimate, no more than approximately two to four liters of sulfuric or hydrochloric acid in a year. Chloroform was not used in any of the testing.
In August 2002, Larissa asked Fichera to rent a unit for her at Security Public Storage, which was on Shaw Avenue near CCRL, so she could conceal some items from Timothy. Fichera rented the unit (A182) in her own name as a favor to Larissa, then gave the key and access code to her. Fichera did not return to the unit after that.
For about a year following the separation, Timothy resided in a condominium in the Woodward Lake area. During the time he was there, he spoke to his close friend, Robert Solis, about a burglary that occurred while he was out of town. Although Timothy expressed a belief that Larissa was responsible, he did not express any fear of her to Solis. However, he once played for Solis some of the telephone messages Larissa left for him on his phone message recorder. They were vulgar and intimidating. Timothy also confided that Larissa had physically assaulted him. Solis heard Timothy mention appellant as occasionally babysitting Timothy and Larissa's son for Larissa.
The break-in occurred a couple of months after Fichera rented the storage unit for Larissa. Larissa confided to Fichera that she had gotten into Timothy's house and that "James" was with her. On several occasions over a period of time, Larissa commented to Fichera that she wanted her husband dead.
Sometime after the burglary, Timothy moved to a house in Clovis. He also obtained a gun permit.
In the late months of 2002, appellant told James Thornburgh about having some property that he obtained from his old boss's ex-husband. At some point, perhaps a month or two before appellant's arrest, appellant said something to the effect that Larissa had asked him to chloroform her ex-husband and rob him again. Appellant also took Thornburgh to see a place in the Tower District that he said he was going to rent and for which Larissa was going to pay.
In the summer of 2003, appellant, Afshin Salehi, and two of their friends were socializing at TGI Friday's when appellant said he wanted to break into his old boss's ex-husband's house and wanted help doing it. He wanted one of his companions to go up to the door and knock, and Taser the victim when he answered the door. Salehi assumed the plan was then to rob the person, who appellant said had nice electronics. Appellant wanted Salehi to Taser the person because Salehi did not know the man, and so the man would not know who Tasered him. Appellant told Salehi that he wanted him to Taser the man in the neck. Appellant explained that if someone were Tasered in the neck, hopefully he would pass out. Salehi responded that he did not know what would happen; the person might not pass out, or something worse could occur. Appellant said he did not know what would happen, either, but Salehi did not believe appellant shared his concern about causing serious injury. Appellant mentioned something about having his ex-boss buy a house so he could live there. He said he had been given some money in relationship to the plan he had.
Appellant discussed his plan with Salehi a second time less than a month later. At that point, which was about a month before appellant's arrest, Salehi decided to have no further contact with him. Appellant never implied the plan was to kill the person.
Sometime prior to June 25, 2003, Judy Van Gorkom, whose home was directly across the street from Larissa's residence in Clovis, saw Larissa moving a blue barrel inside her garage. Several months before Timothy's disappearance, Boatwright saw a blue barrel at the back of the CCRL premises that looked to be a 55-gallon open-top drum, meaning the top could be removed and put back on. This was not the type of barrel normally used at the lab for disposal of solvent waste. At some point, Larissa asked Boatwright either if a body or if Timothy would fit in the barrel. On July 8 and 9, 2003, Boatwright saw bottles of chloroform sitting on top of an acid cabinet at the lab.
In the first part of July 2003, Saint Agnes Hospital was in the process of laying off some workers, including Timothy, a registered nurse who had risen to supervisory level, and Solis's wife. Both had exit interviews scheduled. The night before these interviews, Timothy had dinner at the Solis residence. Plans were made for Timothy to go to his interview, which was scheduled for an hour or two before that of Mrs. Solis, then meet the Solises for breakfast at IHOP. Timothy left the Solis residence about 9:00 p.m. He did not seem depressed.
Timothy failed to appear at IHOP the next morning, July 10. When the Solises learned he had also failed to appear for his exit interview, they became concerned, as he was always on time and never missed appointments. Solis made a number of calls to Timothy's cell phone, which Timothy always carried, but there was no answer. Solis then contacted a mutual friend, Victor Uribe, and asked him to go to Timothy's house to see if Timothy was all right. Uribe reported that the doorbell went unanswered, but that Timothy's pickup — his only vehicle — was in the garage.
The next morning, the Solises went to Timothy's residence. They also contacted the Clovis Police Department, explaining that Timothy was going through a bad divorce and that they were concerned he might have hurt himself.
Clovis Police Officer Willow responded to the residence at approximately 9:00 a.m. on July 11 and entered the house. Timothy was not there, but a checkbook/wallet combination containing his driver's license was in the pickup. Timothy's cell phone was in the bedroom. The butt end of a handgun was visible under the cushion of a chair near the front door. The clothing Timothy had worn to the Solis home the night before was in the hamper.
A missing person report was filed, but Willow was unable to find anyone contained in the address book of Timothy's cell phone, other than the Solises, who had had contact with Timothy more recently than approximately two weeks earlier. One of the people he contacted was Teresa Lopez, Larissa's manicurist. Lopez informed Willow that Timothy and Larissa normally exchanged custody of their 12-year-old son, T., at the Body Shop salon, where Lopez worked, but that Timothy had failed to pick up the boy on the evening of Thursday, July 10. Lopez subsequently contacted the Clovis Police Department to express fear for Timothy's safety and concern he may have fallen victim to foul play because of threats or implied threats from Larissa over their divorce. Lopez also gave information concerning the earlier burglary, and related that someone named "James" may have been involved.
The case was turned over to detectives. Clovis Police Detectives Weibert and Kirkhart searched Timothy's house on the afternoon of Friday, July 11. They found what appeared to be fresh damage to the entryway wall. The telephone on the night stand in Timothy's bedroom indicated that, at 2:02 a.m. on July 10, a call had been received from a number subsequently determined to be...
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