People v. Keller
| Decision Date | 14 February 2001 |
| Docket Number | No. C033613.,C033613. |
| Citation | 87 Cal.App.4th 40,104 Cal.Rptr.2d 259 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Werner KELLER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Supervising Deputy Attorney General, David Andrew Eldridge, Deputy Attorney General, for Plaintiff and Respondent.
In December 1998, while in jail after being arraigned for crimes he allegedly committed against his wife in November 1998, defendant Werner Keller solicited a supposed hit man to attack her and to dissuade her from testifying against him. Defendant did not know that he was speaking to an undercover police detective and that his conversations with the "hit man" were being tape-recorded. After defendant was led to believe the hit man had killed his wife, and defendant paid for the dirty work, he was charged with solicitation for his December 1998 conduct.
A jury found defendant guilty of two counts of violating Penal Code section 653f, subdivision (a)1 for soliciting the undercover officer to (1) commit assault with a deadly weapon or instrument or by force likely to produce great bodily injury against his wife, Rebecca Keller (count one); and (2) dissuade Rebecca from attending or testifying as a witness in a legal proceeding by the use of force or a threat of force (count two). The jury acquitted defendant of falsely imprisoning Rebecca (count three). (§ 236.) The court sentenced defendant to three years in prison.
Defendant contends he received ineffective assistance of counsel because his trial attorney failed to object to evidence of his conversations with the undercover officer, assertedly introduced in violation of his Sixth Amendment right to counsel. His claim relies on a so-called exception to the rule that the Sixth Amendment is "offense specific." We conclude no such exception exists. The Sixth Amendment is a bulwark of liberty, not a fortress from which cowards can safely launch attacks on the innocent with impunity. Once a person is victimized, her assailant may not hide in the shadow of the Sixth Amendment while he tries to dissuade her from testifying and, if necessary, destroy her.
Defendant also claims the court erred by failing, sua sponte, to instruct the jury on the defense of entrapment with respect to count one. We disagree. As we reject both of defendant's claims, we shall affirm.
On November 13, 1998, Henry Habra heard Rebecca knocking on doors and asking someone to call the police because "he" was going to kill her. She sounded frightened. Brandon Ballard heard Rebecca yelling for help and saw defendant force her into the apartment. A minute later, defendant and Rebecca left in a car.
Police Officer Daniel Wanamaker was at the scene when they returned. Defendant was driving. He was arrested and jailed. A complaint filed the same day charged defendant with false imprisonment, kidnapping, and other offenses. Defendant was arraigned and an assistant public defender was appointed to represent him on November 17, 1998. (Defendant was not yet charged with solicitation because those crimes had not yet been committed.)
On December 1, 1998, jail inmate Frederick Scott, who was serving a sentence for spousal abuse in the same jail unit as defendant, contacted Detective Desiree Carrington to inform on defendant. Based on the information received, Carrington told Scott to give defendant the number for a telephone at the sheriffs department.
The next day, Carrington asked Detective Michael Bennett to help investigate a possible solicitation case by posing as a hit man named "John." Bennett received five phone calls from defendant at the number Scott gave defendant. Tape recordings of the calls were admitted in evidence as People's Exhibits 3 and 4, respectively. Both tapes were played for the jury.2
In the December 2 phone call, defendant said "Doc" (referring to informant Scott) told him to call. When Bennett asked, "What's up," defendant replied, "I need you to scare the shit out of my wife." Bennett asked, "What do you want me to do to scare her?" Defendant answered,
Defendant said Rebecca claimed he beat her and that he was facing 10 years for kidnapping, and told Bennett to get her to call the district attorney and recant the kidnapping accusation. Defendant gave him Rebecca's address, and described her and her car. Defendant offered to give Bennett an Omega watch as payment.
Defendant told Bennett, "... you're gonna stop her somewhere, tell her she's gonna recant, she's gonna stop the divorce, she's gonna get the restraining order lifted." When Bennett asked, "And what if she says no man?," defendant replied, "Cut her up." Bennett sought clarification: Defendant responded, "For right now I just want her scared." When Bennett expressed concern Rebecca might identify him, defendant suggested Bennett also threaten her three children, whose names and places of residence he provided.
Defendant told Bennett, "I have my whole life riding on this phone call." Bennett replied, Defendant asked, "Pardon me," to which Bennett said, "I said if I'm gonna cut her up the price goes up." Rather than instructing Bennett not to "cut her up," defendant told him, After defendant said he had no assets other than the watch because Rebecca had taken everything, the following colloquy occurred:
Then tell her we gonna ... cut `em up whatever. Tell her you got the names and address.
Defendant agreed to pay Bennett an additional $800 if necessary. The conversation continued:
Bennett asked for more details and defendant provided them:
Later in the same call the following discussion happened:
In the course of the call, Bennett reminded defendant that if he had to "take it to the next level," then the "price goes up a little bit." Defendant said he would find a way to come up with the extra $800 in that event. Bennett said, Defendant also reiterated his instructions to Bennett as follows:
Defendant called Bennett again at 5:10 p.m. the next day, December 3, 1998. Bennett continued the pretext by stating he had killed Rebecca. He then told defendant a man named Ron Yamazaki would be coming to the jail to collect the watch. Defendant asked, "How do I know the job is done, John?" Bennett told defendant to sign over the watch, and the men then had the following discussion:
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