People v. Wahlert

• Decision Date: 24 June 2005
• Docket Number: No. E035174.,E035174.
• Citation: People v. Wahlert, 31 Cal.Rptr.3d 603, 130 Cal.App.4th 709 (Cal. App. 2005)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joshua B. WAHLERT et al., Defendants and Appellants.

31 Cal.Rptr.3d 603

130 Cal.App.4th 709

The PEOPLE, Plaintiff and Respondent, v. Joshua B. WAHLERT et al., Defendants and Appellants.

No. E035174.

Court of Appeal, Fourth District, Division Two.

June 24, 2005.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing July 19, 2005.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Joshua B. Wahlert.

Richard A. Levy, under appointment by the Court of Appeal, Torrance, for Defendant and Appellant Tracy L. Garrison.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Boustany, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

KING, J.

INTRODUCTION

Defendants Joshua Blaine Wahlert and Tracy Leean Garrison were charged in count 1 of a third amended information with the murder of Michael Willison. (Pen.Code, § 187, subd. (a).)¹ The murder allegedly occurred while the defendants were engaged in the commission or attempted commission of a robbery (§ 211) and kidnapping (§ 207). (§ 190.2, subd. (a)(17)(A) & (B).) The accusatory pleading further alleged that, in connection with the murder, Wahlert personally and intentionally discharged a firearm causing great bodily injury or death (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8)), and that Wahlert and Garrison personally used a deadly and dangerous weapon, a knife (§§ 12022, subd. (b)(1) & 1192.7, subd. (c)(23)). It was further alleged that Garrison participated in the crime knowing that a principal was armed with a gun. (§ 12022, subd. (a)(1).)

The third amended information further charged Wahlert with being a felon in possession of a firearm (count 2; § 12021, subd. (a)(1)), being a felon in possession of ammunition (count 3; § 12316, subd. (b)(1)), and exhibiting a firearm in a rude, angry, and threatening manner or using a firearm in a fight (count 4; § 417, subd. (a)(2)).

The two defendants were tried jointly before separate juries. Garrison's jury convicted her of murder (count 1) and found true the allegations that she committed the murder while engaged in the commission of robbery and kidnapping and of knowing that a principal was armed with a gun. Her jury found not true the enhancement allegation that she personally used a deadly and dangerous weapon. She was sentenced to life without possibility of parole, plus a determinate term of one year for the principal-armed enhancement.

The Wahlert jury found him guilty on all counts and found all enhancement allegations true. He was sentenced to life without possibility of parole on count 1, plus a consecutive sentence of 25 years to life for the gun enhancement and an additional one year on the arming enhancement. He was further sentenced to three years on count 2, eight months on count 3, and one year on count 4, such terms to run consecutively. Both defendants were ordered to pay restitution to victims and a restitution fine. (§ 1202.4, subds. (a) & (b).)

CONTENTIONS ON APPEAL

Garrison contends that the trial court prejudicially erred by: (1) allowing the jury to hear Wahlert's recorded statements made during a telephone call between Garrison and Wahlert; (2) failing to instruct the jury as to accomplice principles; and (3) refusing to provide an instruction on the defense of duress. Garrison also contends that the court's minutes concerning sentencing include errors that must be corrected.

Wahlert joins in Garrison's argument as to the court's failure to instruct on accomplice principles. He further contends that: (1) instructing the jury as to the definition of implied malice in this case constituted a denial of due process; (2) the consecutive sentences on counts 2, 3, and 4 violate section 654; and (3) the sentence on the gun enhancement must be stricken because of language in section 12022.53, subdivision (j). Wahlert also seeks to correct an error in the abstract of judgment.

In the published portion of this opinion, we hold that Wahlert's statements during the recorded conversation between himself and Garrison, to the extent they were offered for their truth against Garrison, were testimonial for purpose of the confrontation clause under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford), but that their admission against Garrison was harmless. In the nonpublished portion of this opinion, we agree with Wahlert that his sentences on counts 2, 3, and 4 violate section 654, and with both defendants that certain clerical errors must be corrected; we also conclude that any errors in failing to instruct as to accomplice principles or concerning implied malice were harmless. We reject the remaining contentions and affirm the judgments.

SUMMARY OF FACTS

Wahlert lived in a recreational vehicle on property belonging to the father of his friend, Jon Ramirez. Ramirez and his father lived in a house on the property. In the months preceding the murder of Willison, Garrison stayed intermittently with Wahlert in the recreational vehicle. The two frequently argued and Garrison would leave for several days at a time to be with Willison. According to Ramirez, Garrison was confused about who she wanted to be with.

Two or three weeks before Willison was killed, Ramirez, Garrison, and Willison went to the home of "Flako" to buy drugs. While Willison was inside Flako's house, Garrison talked to Ramirez about a plan to rob Willison. She said she wanted to give Willison's truck and other property to Wahlert and then the two would go to Las Vegas to get married. She spoke to Ramirez about this plan on two other occasions. Wahlert separately told Ramirez of his desire to "take everything that [Willison] had." Another time, Wahlert, who was jealous of Willison's relationship with Garrison, said he wanted to "beat [Willison] up." Wahlert and Garrison sometimes referred to each other as "Bonnie and Clyde."

On January 14, 2001, Willison called Ramirez to get some help getting a couch from storage into his truck. Willison arrived at Ramirez's home about 10:30 p.m. that night. The two smoked methamphetamine. As Ramirez was putting his shoes on to leave with Willison, Wahlert and Garrison entered Ramirez's home. Garrison brought in a roll of duct tape and set it on the television set. Wahlert pulled out a gun and pointed it at Willison. When Willison pleaded to spare his life and to not "leave [his] two boys fatherless," Wahlert told him to shut up and stuck a bandana in Willison's mouth. Garrison then taped Willison's mouth and hands with the duct tape. She went through Willison's pockets, taking keys, a wallet, a necklace, and a ring, and threw them on a couch. Ramirez was, as he said, "[f]reaking out" and telling them, "No, not here." Ramirez testified that he did not do anything to encourage them; but he did not do anything to stop them "[b]ecause [Wahlert] had a gun." According to Ramirez, Wahlert never turned the gun toward Garrison, threatened her, forced her, or directed her to do anything. It appeared to Ramirez that Wahlert and Garrison were "working together."

Garrison took Willison's keys. With Wahlert pointing the gun at Willison, the three went to Willison's truck. They drove to a secluded rural area where Willison was severely beaten, repeatedly stabbed, and shot twice in the head. He died as a result.

Wahlert and Garrison returned to Ramirez's house in Willison's truck about 20 minutes after they had left with Willison. Ramirez told them "to get their stuff and to leave." Wahlert told Ramirez he was "sorry for letting that happen," gave Willison's ring and necklace to Ramirez as "compensation to help you out for what went on," and told him, "[d]on't say a word." Wahlert took Willison's other property, including a $20 bill and credit cards. Wahlert told Garrison to pack their belongings, which she did. The two then left in Willison's truck.

Later that morning, they tried to buy gas for the truck with one of Willison's credit cards, but the card was not approved. When the gas station attendant went to call the police, Wahlert and Garrison left.

Wahlert and Garrison drove the truck to the home of Ed and Donna Geiger, where Vernon Wood was staying. Wahlert told Wood that he had taken the truck "from a dude that he killed." He told Wood that he intended "to rob the guy . . . and stuff got out of hand and he shot him, stabbed him[,] and split." Wahlert showed Wood credit cards with the name "Michael" on them. Wahlert asked Wood to help him bury the victim, but Wood refused. He also asked Wood where he could get a 50-gallon drum. Wahlert left a bag of clothes at the house, which Ed Geiger later burned.

A couple of days after the murder, Wahlert called Ramirez to say that he and Garrison were going to Las Vegas to get married and asked Ramirez to be the best man. Later, Wahlert told Ramirez that he had shot Willison in the head and put a tarp over him. He also told Ramirez where the body was located and asked Ramirez to "take care of the body."

On January 20, 2001, Wahlert and Garrison were in Willison's truck when Wahlert displayed a gun to two women in another car. One of the women called her husband who called 911. Shortly afterward, Wahlert was arrested for brandishing a firearm. The police found a .30-caliber gun in the truck and a live round in Wahlert's pocket. While being booked on this charge, Wahlert commented: "I'm looking at 60 years, they just haven't found out the half of it yet."²

In a subsequent search of the truck, police found, among other items, a pair of blue jeans stained with Willison's blood, a man's empty wallet, a black bag, and a red bag. In the black bag were checks on Willison's personal bank account, a payroll check made out to Willison, and business cards for Willison's painting business. The red bag contained credit cards in Willison's name and a bandana.

A couple of days after...