People v. Guilder, A112638 (Cal. App. 5/31/2007)
| Decision Date | 31 May 2007 |
| Docket Number | A112638 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DANIEL BRIAN VAN GUILDER, Defendant and Appellant. |
Appeal from the Sonoma County Super. Ct. No. MCR-446771.
Appellant Daniel Brian Van Guilder was convicted by jury of five counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)1), six counts of assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and one count of making criminal threats (§ 422). Various sentencing enhancements were found true.2 All of appellant's convictions arose from an incident during which appellant went on a rampage in his vehicle, attempting to run down numerous victims, including his four-year-old daughter and six-year-old stepdaughter. After being sentenced to 21 years, 4 months plus two consecutive life terms, appellant filed this appeal.
On appeal, appellant claims that this case should be dismissed because of the "[o]utrageous government misconduct" of the prosecutor in listening to privileged attorney/client communications. He also claims that "[t]his is not the kind of case that enables the jury to draw reasonable inferences that appellant possessed the specific intent to kill" necessary to support his conviction for three of the counts of attempted murder. Error is also alleged in giving and omitting certain jury instructions. Lastly, appellant claims he received ineffective assistance of counsel at trial because of counsel's failure to pose timely and appropriate objections to "ensure that highly objectionable and inflammatory evidence was kept from the trier of fact." We reject these arguments and affirm.
By July 2004, appellant's marriage to Jane Doe had deteriorated and he was living outside the home. They had a daughter together, age four, and Jane Doe had a daughter, age six, from a prior relationship.
On July 30, 2004, appellant called Jane Doe and asked her to bring him some items of property, including a television. Jane Doe reluctantly agreed after appellant promised not to be there during the drop off. Jane Doe arrived with the two girls and the property at about 7:15 p.m. As she began to unload her van, appellant showed up and began talking with Jane Doe. At one point, he asked her to hug him, but she refused his advances. He also spoke with the girls, who were happy to see him and asked him when he was coming home.
Jane Doe said, Appellant started cursing and threatening to kill himself. She got in the van with the girls and left. Appellant was very angry and went into his trailer and grabbed a bottle of pills. In the presence of his roommate, he threatened to kill himself.
When Jane Doe was stopped at a red light on her way home, appellant pulled up alongside of her and began screaming that he was going to kill himself and that he wanted her to watch. He started dumping a vial of pills down his throat and washing them down with soda. The girls were screaming and crying.
When the light turned green, Jane Doe drove into a shopping center parking lot in an effort to get help. As Jane Doe pulled into the parking lot, appellant began to ram the rear of her van with his Blazer. She described appellant's 1986 Blazer as "a real big vehicle" as appellant had "it lifted up higher and it has chrome rails across the front of the vehicle and he has step ups on it because it's so high up in the air." He continued to ram the van repeatedly with such force that Jane Doe was fearful that her van was going to tip over. During one of the rams, the van's rear window shattered, showering glass throughout the interior of the vehicle and onto the girls.
Jane Doe stopped in the parking lot and got out of the van in an effort to calm appellant, and to divert his attention away from the girls, thereby giving them a chance to exit the van. At some point, when Jane Doe was at the passenger side door of the Blazer trying to calm appellant, he pulled on her shirt, ripping it, and then hit her several times in the chest, causing bruising. Appellant told Jane Doe to get into the Blazer, or he was going to kill the girls. He displayed a knife when the threat was made.
Kory Hopkins and his wife saw Jane Doe's van being rammed in the parking lot. His wife said "we need to help them," so Kory drove his Yukon to the area of the altercation and parked. He approached appellant, attempting to diffuse the situation. When appellant told him to "shut the fuck up," he returned to his vehicle.
The girls opened the van door and ran out screaming and crying. They were brought over to Kory Hopkins's Yukon and were being comforted by Hopkins and his wife, as well as three ladies who ran over to help——Kathy Rich, Amber Eames and Brittany Guerrero. Everyone was congregated around the Yukon's driver's side door.
Appellant then accelerated and headed straight for the group. Amber Eames ran to her left towards the front of the Yukon in order to get out of the way of the speeding Blazer. Kathy Rich picked up the four-year-old and placed her on her hip and pulled the six-year-old by her hand and they jumped out of the way of the speeding Blazer. Kathy Rich estimated the Blazer missed her and the girls by less than two feet before crashing into the driver's side of the Yukon in the exact location where they had been standing. Kory Hopkins, who had jumped into the open door of his Yukon in an attempt to move his vehicle, was knocked momentarily unconscious and woke up on the pavement. The Yukon was totaled.
Police arrived on the scene, which one officer described as "mass chaos," and were directed to appellant, who was seated in his Blazer. After a brief struggle, officers were able to remove appellant forcibly from the Blazer, and to place him under arrest. After his arrest, appellant was taken to an emergency room where he was treated for an overdose of Seroquel. His blood test was positive for Quetiapine and Lorzepam, both of which are prescription antipsychotic medications.
There was no material issue at trial as to appellant's participation in the charged offenses. Appellant's defense instead centered on his purported inability to form the requisite mental state for attempted murder. Specifically, the defense claimed that he could not premeditate and deliberate and that he did not harbor the specific intent to kill. Defense counsel indicated "there is nothing in the evidence to suggest that this man who's suicidal, who's agitated, who's full of Seroquel is making a conscious decision, having reflected, to kill anyone." Counsel claimed "it was an act of desperation, it was a man who lost everything, had nothing left, and was acting out in a rage."
Appellant first claims that He argues further that "the outrageous conduct on the part of the prosecutorial team mandated dismissal of the charges against appellant."
On March 21, 2005, District Attorney Investigator Kim Dayton requested that the jail check all phone calls made by appellant since his incarceration on July 30, 2004.3 On March 29, 2005, Investigator Dayton received a CD on which the telephone conversations were recorded. In reviewing the CD, she heard about 25 to 30 seconds of a call appellant made to defense counsel. As soon as she heard defense counsel's voice, she stopped listening.
That same day, Investigator Dayton sent an e-mail to Robert Waner, the deputy district attorney prosecuting the case. In that message, she stated that while randomly listening to the telephone conversations provided by the jail, she heard a portion of a conversation between appellant and his attorney, Jill Ravitch. She described the content of the conversation as appellant talking with Ms. Ravitch about retaining her. Investigator Dayton also wrote that she "will not discuss anything I heard in the phone call with anyone." She also indicated she had checked the phone call print out and found other telephone calls to Ms. Ravitch's telephone number.
On March 30, 2005, Investigator Dayton sent another e-mail to Mr. Waner informing him that she had found an additional four telephone calls to the attorney's telephone number. Later that day, Ms. Ravitch received a telephone call from Mr. Waner alerting her to the fact that the District Attorney's Office was in possession of recordings of her telephone conversations with her client. In this message, Mr. Waner stated that Investigator Dayton had notified him of the problem and that she had not relayed to him anything that she had heard.
On April 7, 2005, all appellant's recorded jail phone calls were turned over to the court and sealed. On July 29, 2005, the defense filed a motion to dismiss the case alleging prosecutorial misconduct. At a hearing held on October 3, 2005, the court, in camera, listened to seven recorded phone calls between appellant and his defense counsel.
At that hearing, testimony was received from Judy Brubaker, the Information Bureau Manager for the Sonoma County Jail regarding the jail's telephone recording system. She testified that beginning in May 2004, the Sonoma County Jail implemented a new jail telephone system, whereby inmate calls are recorded and stored in Alabama. Under the new telephone system, instead of tracking inmate's calls by the outgoing telephone number, each prisoner was assigned a pin number and calls were tracked by pin number. Thus, all of a particular inmate's...
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