People v. Larsen
| Decision Date | 08 August 2012 |
| Docket Number | No. A128973.,A128973. |
| Citation | 140 Cal.Rptr.3d 762,205 Cal.App.4th 810 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Chad Andrew LARSEN, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Philip M. Brooks, Esq., for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Julia Y. Je, Deputy Attorney Genera, for Plaintiff and Respondent.
Defendant Chad Andrew Larsen was convicted following a jury trial of conspiracy to commit murder and solicitation to commit murder. The trial court sentenced him to 25 years to life for the conspiracy conviction, and a concurrent nine-year term for the solicitation conviction. He contends the trial court infringed on his constitutional right to present a defense by failing to give an instruction on mental disorder and intent, failed to give instructions on entrapment and the criminal liability of his co-conspirator, and erred by denying his motion to recuse the entire prosecutor's office prior to sentencing.
We conclude that the trial court committed error by refusing to give the CALCRIM No. 3428 instruction on evidence of mental disorder and intent. The instructional error was, however, not prejudicial. We find that no other errors were committed. We therefore affirm the judgment.
In January of 2008, defendant was arrested and subsequently charged with felony violations of unlawful sexual intercourse and oral copulation with a minor (Pen.Code, §§ 261.5, subd. (c), 288a, subd. (b)(1)), 16–year–old Jane Doe.1 While defendant was held in the Humboldt County Jail awaiting trial, his father, Dennis Larsen (Dennis) regularly visited him. To avoid the recording devices on jailhouse phones, defendant would often communicate with Dennis by holding up handwritten notes to the glass partition in the visiting room.
During the first visit defendant told Dennis he “wasn't guilty of what he was charged with,” and did not want the case “to go forward.” Defendant expressed apprehension to Dennis that should Jane Doe testify against him, he would be convicted.2 He hoped she would not testify because he feared going to prison and being required to register as a sex offender.
Dennis soon realized that defendant “had had sex with a minor.” Defendant “was very concerned about scientific evidence” that may “support the charge against him of ... statutory rape.” He repeatedly asked Dennis to “wipe down the front seat” of his truck by rubbing a “tri-tip roast” into the seat to eliminate “DNA evidence” linking him to Jane Doe. Dennis complied, using a towel soaked in tri-tip or other meat juice.
Evidence was presented that defendant contacted several fellow jail inmates with proposals to kill Jane Doe to prevent her from testifying at trial. Between February and June 2008, at defendant's request Dennis sent two $500 money orders to two Humboldt County Jail inmates at different post office boxes, each addressed to “our friend.”
Defendant also approached fellow Humboldt County Jail inmate Scott Schwartz with a scheme for him to go to the victim's residence, kick the door in, “pretend [to be] police and kill everybody in the house so she couldn't testify.” In May of 2008, defendant enlisted Dennis to pay Schwartz, who by then had been released from jail, $1,500, and give him a ride to San Francisco, in exchange for carrying out the murder of Jane Doe.3 Dennis gave Schwartz the money and drove him to San Francisco, but Schwartz failed to perform the murder, and subsequently tried to blackmail Dennis and defendant.
On several occasions defendant offered another inmate he met in the “same tier” of the county jail, William Lenard, money to kill Jane Doe to prevent her from testifying. Defendant referred to the victim as a “little drug addict whore that didn't deserve to live,” and feared that he “would be sent to prison for a long time” if convicted. Over the course of two weeks, defendant first offered Lenard $1,500, then raised the price to $2,000, to “make sure his witness couldn't testify.” Lenard finally told defendant, “I don't want to hear it no more.”
Lenard testified that he overheard defendant talk to “other people” in the common area of the facility, one of them Schwartz, “about having the victim killed” and burying her on property he owned. Defendant often discussed “different ways” they could kill the victim and “get away with it,” and mentioned that if the victim “can't show up,” they “don't have a case.” When he was released from custody in May 2008, Lenard reported defendant's murder proposals to his probation officer and a district attorney investigator.
Brian Ekker was defendant's cell mate in Humboldt County Jail. Defendant told Ekker that he was “worried about” Jane Doe's testimony. Defendant wanted to pay someone “on the outside” to “get rid of her” so she “would not testify.” He offered Ekker $1,000 and a “broken down three wheeler” to kill Jane Doe. Defendant suggested Ekker drive by Jane Doe and shoot her. Ekker refused the offer. Ekker testified that defendant told him he had asked other inmates, including Schwartz, to murder Jane Doe, but they “took the money” and failed to do the job.
In late April or early May 2008, defendant met inmate Carlton Wallace in the jail. Defendant told Wallace he feared being convicted, and had offered Jane Doe money not to testify, to no avail. Defendant asked Wallace to murder Jane Doe for money. Defendant offered Wallace $5,000, saying Dennis would give him the money. Defendant told Wallace if he murdered Jane Doe he also could be defendant's partner in a marijuana growing operation he was planning on his father's farm. Wallace believed defendant's proposal was serious.
Defendant suggested that Wallace befriend Jane Doe, who defendant claimed was a drug addict, and give her a bag of “bad drugs” to kill her. According to defendant's plan, Wallace would then take her body to Dennis's farm on Port Kenyon Road in Ferndale. Wallace would place the body in a trough tied down with straps, pour concrete over the body, and deposit it under a concrete slab on the property. Defendant drew detailed maps showing where Jane Doe lived and gave them to Wallace. He also gave Wallace a detailed description of Jane Doe and wrote out detailed, step-by-step instructions for Wallace to carry out the murder plan. Defendant provided blueprints of the ranch showing Wallace the location of the materials defendant wanted him to use to conceal the body. Wallace, who was due to be released soon, was to contact Dennis and tell him “I was the guy that would carry out the ... plan.” Defendant also directed Wallace to tell Dennis to visit him in jail immediately.
In what Wallace described as “the final plan,” he was to meet with Dennis to receive $200 and a “bag of bad drugs” to be given to Jane Doe. Once he received the drugs, Wallace was supposed to convince Jane Doe to call her mother and say she was going to San Francisco for a week or two with some friends and “didn't want to be bothered,” and post a similar message on her “My Space page.” Wallace was then to remove the battery from Jane Doe's cell phone, and tell her to accompany him to San Francisco to bring “back some drugs to Humboldt,” in exchange for drugs and cash she would receive. Wallace was to give Jane Doe tainted drugs “that was supposed to kill her.” If that “didn't kill her,” Wallace was directed to snap her neck with “ four pounds of pressure” necessary to “break someone's neck.”
After Jane Doe was dead, the plan called for Wallace to take the body to the Ferndale farm where he would find shovels to dig a hole, a trough, some tie-down straps, and some fast-drying concrete. Defendant said he would arrange through Dennis to have the shovels and other materials there. Wallace was to strap Jane Doe's body into a fetal position with the tie-down straps to make her more compact to fit into the trough, fill the trough with concrete, and bury it under a concrete slab, covering the hole with debris. Defendant told Wallace he would wait a year or two after he was released, dig up the body, put it in his boat, and dump it in the ocean. Defendant professed to Wallace that “he'd be safe,” and they would both “be rich” marijuana growers.
Defendant drafted a “blueprint of everything” for Wallace, including a drawing of the trough and a note stating exactly what Wallace was to say to Dennis. The note read as follows: Defendant also provided Wallace with a picture of his dog “Wuffle” to give to Dennis, “a picture that he knew his son wouldn't part with.”
Wallace believed he was being set up to take the blame for the murder. He revealed defendant's plan to his attorney, Glenn Brown, and told Brown he did not want to be involved. Brown reported the matter to the district attorney's office, which sent Chief Investigator Hislop and two other investigators to interview Wallace. Wallace provided the investigators with some or all of the writings he received from defendant, presumably the detailed instructions and maps, plus a picture of a dog.
The investigators fitted Wallace with a recording device. Wallace recorded a conversation in which ...
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