People v. Jantz

• Decision Date: 27 March 2006
• Docket Number: No. B175147.,B175147.
• Citation: 137 Cal.App.4th 1283,40 Cal.Rptr.3d 875
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roger Wayne JANTZ, Defendant and Appellant.

40 Cal.Rptr.3d 875

137 Cal.App.4th 1283

The PEOPLE, Plaintiff and Respondent, v. Roger Wayne JANTZ, Defendant and Appellant.

No. B175147.

Court of Appeal, Second District, Division 6.

March 27, 2006.

Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

PERREN, J.

Roger Wayne Jantz was convicted of first degree murder (Pen.Code, §§ 187, 189),¹ stalking (§ 646.9, subd. (a)), and making a criminal threat (§ 422). In a bifurcated sanity trial, the jury found that Jantz was sane when he committed the offenses. He was sentenced to prison for 25 years to life for the murder, plus three years for stalking and one year for personal use of a deadly and dangerous weapon in the murder. (§ 12022, subd. (b)(1).) Jantz claims instructional error. He contends the trial court erred by instructing the jury on murder by lying in wait, failing to give a unanimity instruction for the stalking and criminal threat offenses, and failing to instruct the jury that his statements to experts during the sanity trial could be considered to show the basis for the experts' opinions but not for their truth. We conclude that the trial court erred by failing to give a limiting instruction regarding his statements to the experts, but that the error was not prejudicial. We reject Jantz's other contentions. Accordingly, we affirm.

FACTS

Appellant Jantz and victim Erika Jantz² were married in 1994. In March 2002, Erica told Jantz that she wanted a divorce. Jantz became upset, jealous and depressed. He told his mother and friends that he loved his wife and wanted to make the marriage work. He continued to reside with Erika but was looking for a new place to live.

Erika, an emergency room nurse, told coworkers that Jantz followed her wherever she went and, on April 10, 2002, physically assaulted her by throwing her down on the bed and threatening to rape her if she did not let him have sex with her. On April 11, 2002, Erika told coworker Lisa Hall that Jantz told her "he was going to kill himself and that he was going to take her with him." Erika told other coworkers words to the effect that, if anything happened to her, Jantz did it.

Erika and Jantz's 10- or 11-year-old son T. or heard his parents arguing about their divorce on April 12 or April 13. Jantz accused Erika of not trying to make the marriage work, but Erika got Jantz "calmed down pretty good." Jantz told T. that, if his parents divorced, T. would live with his mother and see Jantz on weekends.

On April 13, Jantz visited friends. He seemed upset, depressed and sad because Erika wanted a divorce. He said he wished the situation could be better and was hopeful things would work out and the marriage could be saved. He said he had broken a window in Erika's car, but had arranged to have it repaired.

On the evening of April 13, Erika went on a date with coworker Richard Dykhouse, and stayed with Dykhouse until the following morning. Jantz made several unanswered calls to Erika's cell phone during the night. At approximately 4:49 a.m. on April 14, Erika telephoned Jantz at their home, and they spoke for between two and three minutes. Shortly after 5:00 a.m., Jantz telephoned his mother. He was crying and told his mother that Erika had slept with another man and wanted to talk when she got home. Jantz told his mother that he was burning Erika's lingerie in the barbeque.

At 6:00 a.m., Jantz told T. that Erika had cheated on him, and that T. should pack his clothes because he was going to his grandmother's house. Approximately 30 minutes later, Jantz's mother arrived to pick up T. Jantz appeared calm, but acted like he had his mind set on something. Later, Jantz telephoned his mother and told her that he was resigned to the end of his marriage. He said he could not go to his mother's house because Erika wanted to talk to him when she got home to make arrangements for the divorce.

Erika left Dykhouse at 9:00 a.m. and drove to her house, approximately 65 miles away. Between 9:00 and 9:30 a.m., she made three cell phone calls to Jantz. The first and second calls lasted 13 and 24 seconds, respectively, and the third call lasted over two and one-half minutes.

Erika's body was discovered on her kitchen floor at 2:30 p.m., April 14, 2002. She had been hit in the head with a frying pan and stabbed in the neck with a knife. Several bloody kitchen knives and the frying pan were found in the house. Knife wounds had severed Erika's jugular vein and carotid artery and penetrated the surface of her cervical vertebra. There were stab wounds to her abdomen, a broken forearm bone, and other injuries, including defensive wounds indicating a struggle had occurred.

Jantz was found unconscious and snoring on the living room floor. He had several self-inflicted wounds to his body.

The police also found rope tied to the bed, and a baseball bat, hammer, and knife near or under the bed. More rope was found in the bedroom and in the living room under the sofa seat cushion. Bloody rope was found in the hallway.

At trial, Jantz pleaded not guilty and not guilty by reason of insanity. The trial was bifurcated with the sanity phase following the verdict in the guilt phase.

In the sanity phase, defense psychiatrist Ronald Shlenski testified that Jantz told him that Jantz remembered hitting Erika with the frying pan, but did not remember using a knife to kill her. Dr. Shlenski testified that, in his opinion, Jantz suffered from schizophrenia and was insane at the time of the killing. Dr. Shlenski testified that Jantz understood right from wrong and the nature and consequences of his acts when he hit Erika with a pan and when he inflicted wounds on himself after the murder, but not during the few minutes when he was stabbing Erika.

Defense expert Dr. Gary Groth-Marnat also diagnosed Jantz with schizophrenia and testified that his ability to act in a knowing way was probably impaired at the time of the murder, and it would have been difficult for Jantz to distinguish right from wrong at that time. Dr. Groth-Marnat testified that some testing indicated that Jantz may have been malingering and attempting to feign mental illness.

Court-appointed forensic psychologist Dean Given testified that Jantz was sane at the time of the murder because he understood the nature of his actions and knew the difference between right and wrong. Dr. Given testified that Jantz told him that he had lost control when he hit Erika with a pan and then stabbed her. Jantz told Dr. Given that he knew right from wrong when he killed Erika and that, when he realized what he had done, he tried to kill himself.

Prosecution expert Dr. James Tahmisian testified that Jantz did not suffer from schizophrenia or any other mental disorder or defect at the time of the murder that would render him unable to understand the nature and quality of his acts, or the difference between right and wrong. Dr. Tahmisian testified that Jantz told him that he understood right from wrong at the time he killed Erika, and that test results indicated that Jantz was malingering during his evaluation.

Prosecution expert Dr. John Rivard testified that Jantz was not psychotic at the time of the murder and knew right from wrong as well as the nature and quality of his acts. Dr. Rivard testified that, when asked whether he believed he could distinguish right from wrong, Jantz said, "I don't know why I did it, I just knew I did it." Rivard testified that Jantz was malingering during his evaluation.

Jail psychiatrist Dr. Howard Babus testified in rebuttal regarding the question of malingering. Dr. Babus testified that he suspected Jantz was malingering, but could not be certain.

DISCUSSION

No Error in Instructing Jury on Murder by Lying in Wait

The jury was instructed on the elements of first degree murder by premeditation and deliberation, and first degree murder by means of lying in wait. (§ 189.) Jantz contends that the trial court erred by instructing on lying in wait because the evidence negates that theory as a matter of law. He argues that there is no evidence of concealment and surprise. We disagree.

It is error to instruct a jury on a theory of guilt without evidentiary support, but the trial court must instruct the jury on every theory that is supported by substantial evidence. (People v. Crew (2003) 31 Cal.4th 822, 835, 3 Cal.Rptr.3d 733, 74 P.3d 820; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.) Substantial evidence is evidence that would allow a reasonable jury to find the existence of the facts underlying the instruction, and to find the defendant guilty beyond a reasonable doubt based on the theory of guilt set forth in the instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1206, 17 Cal.Rptr.3d 532, 95 P.3d 811; see also Crew, supra, at p. 835, 3 Cal.Rptr.3d 733, 74 P.3d 820.) In making this determination, we view the evidence most favorably to the judgment presuming the existence of every fact that reasonably may be deduced from the record in support of the judgment. There is no instructional error when the record contains substantial evidence in support of a guilty verdict on the basis of the challenged theory. (Cole, supra, at p. 1206, 17 Cal.Rptr.3d 532, 95 P.3d 811.)

"Murder perpetrated by lying in wait requires an intentional murder `committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage....'" (People v. Hardy (1992) 2 Cal.4th 86, 163, 5 Cal.Rptr.2d 796, 825 P.2d 781.) Here, we conclude that there is substantial...