People v. Wheelock

• Decision Date: 06 April 2004
• Docket Number: No. A096854,A096854
• Citation: 117 Cal.App.4th 561,11 Cal.Rptr.3d 796
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Franklin WHEELOCK, Defendant and Appellant.

11 Cal.Rptr.3d 796

117 Cal.App.4th 561

The PEOPLE, Plaintiff and Respondent, v. Thomas Franklin WHEELOCK, Defendant and Appellant.

No. A096854

Court of Appeal, First District, Division 3

April 6, 2004

Certified For Partial Publication^*

Rehearing Denied April 30, 2004

Review Denied June 30, 2004^**

Randy Baker, First District Appellate Project Independent Case System, for Appellant.

Bill Lockyer, Attorney General of the State of California; Robert R. Anderson, Chief Assistant Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Catherine A. Rivlin, Supervising Deputy Attorney General; Christina Vom Saal, Deputy Attorney General, for Respondent.

PARRILLI, J.

A jury convicted Thomas Franklin Wheelock of first degree murder with personal use of a firearm, and with the special circumstance that the murder was committed during a robbery. The jury rejected a special circumstance allegation that the murder was committed while Wheelock was lying in wait. After a penalty trial, the jury chose a sentence of life without the possibility of parole. The court imposed that sentence, and stayed a four-year term for the firearm use. Wheelock raises a series of claims on appeal. There was no reversible error, and therefore we affirm.

BACKGROUND

On November 24, 1997, Armored Transport, Inc. informed the Oakland police that one of its armored trucks was missing. Wheelock and Rod Cortez were the employees who had been on duty in that truck. The next day the truck was found behind an auto parts store in San Ramon. Cortez's body was in the truck; he had been shot three times in the right side of the head and neck.

On November 27, a Utah highway patrol officer stopped Wheelock as he drove a Ford Bronco without a rear license plate, which was a violation of Utah law. Wheelock gave the officer his driver's license and a bill of sale for the Bronco. A computer check revealed a warrant for Wheelock's arrest. As he took him into custody, the officer asked Wheelock if he knew why he was being held at gunpoint. Wheelock replied "because I robbed my work." The officer asked if he had hurt anyone, and Wheelock said "yeah, I did." Wheelock nodded his head when asked if he had shot "him." The officer asked what happened, and Wheelock said "I just flipped out. I was going to lose my job soon and I just ___." Wheelock stopped responding at that point.

That night, Wheelock was interviewed by Oakland police officers in a Utah jail. He was cooperative, and did not deny the shooting. Parts of the interview were taped, but no details of this interrogation were entered into evidence.

The next day, Wheelock gave another interview in the Utah jail to an Alameda County prosecutor. A tape of this interrogation was played for the jury. Wheelock waived his Miranda rights and gave the following account. He had returned from a Caribbean cruise with his friend Peter York the day before the shooting. Just before the cruise, Wheelock learned the state had denied his application for a card authorizing him to be a security guard. This meant he would not be able to continue working for Armored Transport. He started thinking about robbing an armored car and going to Canada to "try to start over." On the second or third day of the cruise, he began making notes on his plan. Shooting his partner in the armored car was always a part of the plan.

Wheelock's goal was to try to become an assassin after the robbery. He had considered doing the robbery on the Wednesday before Thanksgiving, but was concerned he might be sent home when he reported on Monday of that week because of the problem with the guard card. He had lunch with York before going to work on Monday, and told him he was "going to do it." Wheelock asked York to leave a backpack with a change of clothes and an extra gun by the side of York's house. York complied with this request.

Wheelock planned to commit the robbery as he and Cortez were on the way to Union Bank, but could not bring himself to do it then. Wheelock failed to correctly account for some bags of checks at Union Bank, which threw them off schedule. Wheelock said Cortez was "a little upset with me." They were due at Brinks by 7:30, but showed up "very late." The Brinks employees were angry, and Wheelock apologized. Cortez "got real mad at me for apologizing because we're supposed to just blame it on something else and not on ourselves."

Wheelock said the fact he had "screwed up" that day made him worry that his job would be further jeopardized. When they loaded up the money at Brinks, he "just flipped." Cortez was driving the truck as they pulled away from Brinks at around 8:00. Cortez told Wheelock again that he shouldn't have apologized, and said Wheelock was going to have to "figure out the paperwork." Wheelock drew his gun and shot Cortez three times. He thought the second shot missed. The truck was "barely moving," and Wheelock managed to push Cortez away from the wheel and get himself into the driver's seat.

Wheelock drove the truck to San Ramon and parked it in an out-of-the way place behind the parts store. He was covered with blood when he got out, and washed himself at a faucet behind the store. He ran to York's house, three or four blocks away. He took the backpack York had left for him, as well as a duffel bag he found in York's garage, and returned to the truck. Wheelock loaded the money into the duffel bag, but found it too heavy to carry. He put some money in the backpack, left the duffel bag in some bushes, and returned to York's house. There he left some money for York, as he had promised to do.

Wheelock then walked to a restaurant and called a taxi. After an abortive attempt to take a train to Portland, he took another taxi to Walnut Creek, where he found York in a video arcade. York worked at the arcade but was off duty. He agreed to drive Wheelock to Sacramento. First they went back to San Ramon and picked up the duffel bag with the money. York then took Wheelock to a motel in Sacramento. The next morning, Wheelock bought the Bronco at a used car lot. When he returned to the motel, he saw a police car and decided not to get the money he had left in his room. He got on the freeway with the money he had with him, around $28,000.

Wheelock took Interstate 5 north through Redding, then turned east because he wanted to stay off major highways. After getting lost, and spending a sleepless night in Idaho, he decided he "didn't want to do it anymore." He had always wanted to see Colorado, so he was on his way there, intending ultimately to return to California, when he was arrested.

We will discuss further facts as they are relevant to Wheelock's contentions on appeal.

DISCUSSION

1.-3.^**

4. The Motion to Suppress the Utah Statement

Wheelock moved to suppress the statement he made at the Utah jail where he was held pending extradition to California. His principal argument was that, because he was represented by Utah counsel for purposes of the extradition proceedings, the prosecutor's questioning in the absence of Wheelock's attorney violated his Sixth Amendment right to counsel under Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (Massiah). The court denied the motion, ruling that since Wheelock had not yet been charged, his Sixth Amendment right to counsel had not attached and thus there was no Massiah violation.

On appeal, Wheelock acknowledges that "a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." (United States v. Gouveia (1984) 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146; see also Texas v. Cobb (2001) 532 U.S. 162, 172, 121 S.Ct. 1335, 149 L.Ed.2d 321 ["the Sixth Amendment right to counsel attaches only to charged offenses"]; Fellers v. United States (2004) 540 U.S. 519, 124 S.Ct. 1019, 1022, 157 L.Ed.2d 1016.) However, Wheelock notes that state law determines when a prosecution commences for purposes of the Sixth Amendment right to counsel. (Moore v. Illinois (1977) 434 U.S. 220, 228, 98 S.Ct. 458, 54 L.Ed.2d 424.) He claims that under Penal Code section 804, subdivision (d), his right to counsel attached upon the issuance of an arrest warrant.⁵ He also contends the right to counsel attaches at the commencement of extradition proceedings under California law. Neither of these arguments is sound.

By its terms, Penal Code section 804 governs commencement of prosecution "for purposes of this chapter [Chapter 2, Title 3, Part 2 of the Penal Code]." It was drafted with the statutes of limitation in mind. (See Cal. Law Rev. Com. com., 50 West's Ann. Pen.Code, § 804 (2004 supp.) pp. 56-57; People v. Le (2000) 82 Cal.App.4th 1352, 1357-1358, 98 Cal.Rptr.2d 874.) To determine when Sixth Amendment rights attach, the California Supreme Court follows the holdings of the United States Supreme Court. (E.g., People v. Martinez (2000) 22 Cal.4th 750, 758-765, 94 Cal.Rptr.2d 381, 996 P.2d 32 [right to speedy trial]; People v. Slayton (2001) 26 Cal.4th 1076, 1081-1083, 112 Cal.Rptr.2d 561, 32 P.3d 1073 [right to counsel]; People v. Clair (1992) 2 Cal.4th 629, 657, 7 Cal.Rptr.2d 564, 828 P.2d 705 [right to counsel].) In United States v. Gouveia, supra, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146, the high court made it clear that the Sixth Amendment right to counsel does not attach at the time of arrest: "Our speedy trial cases hold that that Sixth Amendment right may attach before an indictment and as early as the time of `arrest and holding to answer a criminal charge,' [citations], but we have never held that the right to counsel attaches at the time of arrest. This difference is readily explainable, given the fact that the speedy trial right and the right to counsel protect different interests. While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect...