Filed 11/29/18 P. v. Wilhelm CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed in part, reversed in part, remanded for resentencing.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

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Upset with his ex-girlfriend, defendant Thomas Michael Wilhelm took a handgun from a neighbor’s house and shot her six times. His only argument on appeal from his murder conviction is that the trial court erroneously excluded evidence of his own statements that he feared the victim. We find no abuse of discretion in the court’s decision to exclude these statements under the Evidence Code,[1] and had we found error, we would find no prejudice requiring reversal.

In a supplemental brief, Wilhelm argued that he must be resentenced due to a change in law concerning a firearm enhancement attached to the murder count. The Attorney General concedes the point, and we agree. We therefore reverse for resentencing only and affirm the judgment in all other respects.

I

FACTS

Given the limited issues on appeal, we summarize the facts briefly, with a focus on those relevant to the question before us. As of 2012, Wilhelm had owned a sprinkler business for over 25 years called Wilhelm Sprinkler Company. In 2009 or 2010, Wilhelm and Christine Murray began a romantic relationship, and at some point thereafter, they moved in together in a house in Costa Mesa. They kept three Great Dane dogs, one of whom was particularly protective of Murray.

In 2011, Wilhelm lost his contractor’s license for reasons not relevant here. Murray obtained a contractor’s license, and he put all company assets in her name or the corporate name. He continued doing the sprinkler work, while Murray did administrative and office work. At some point, their romantic relationship deteriorated, but they continued living together in separate bedrooms. Murray’s young son, Dolan, also lived with them, as did Murray’s niece, Samantha Machal, and her boyfriend, Dustin Hamaker.

Wilhelm became concerned that Murray wanted to take the business away from him. Wilhelm and Murray often argued about control of the business, and she expressed her intent to start her own business and distance herself from Wilhelm. On one occasion, Wilhelm yelled at her that he wanted her to “‘move out and give me back my name, you c[–].’” Murray told him he could have the business back if he moved out.

Murray began to express fear for her safety, keeping a baseball bat in her room in case Wilhelm tried to attack her, and texting a neighbor she could not sleep at night because she “expect[ed] an attack of some sort.” Wilhelm called Murray several epithets in front of witnesses. He told her that she was “‘going to get what’s coming to you’” and that she was “‘going to see God soon.’” Murray called the police. Wilhelm also threatened Murray in front of others. He told his neighbor Chad Gordon: “‘I think I’m going to kill her.’”

Wilhelm, at some point, spoke to his neighbor, a former police officer and firefighter named John Michael, about his deteriorating relationship with Murray and his concerns about the business. Wilhelm also claimed he was afraid for his safety, which are the statements that are the subject of this appeal, and which we will explore below. On the day of the murder, he later told the police he took a gun and ammunition from Michael’s home. That same day, he told Michael: “‘I’m leaving or I will kill her.’”

The day of the murder, Wilhelm came home obviously drunk. He told Murray he wanted to speak to her. Murray told him that she would talk to him when he was sober, and Wilhelm left the room. Murray texted Wilhelm’s former business and romantic partner, Laurie Campolito, that Wilhelm was in his room singing, “I used to love her but I had to kill her” repeatedly. Hamaker heard Wilhelm yell out that he was going to assault and kill Murray.

Hamaker and Machal left, but Murray’s son, Dolan, who was 8 years old at the time, was still at home. Dolan heard Murray yell for him to call 911 because Wilhelm was beating her, and he had a baseball bat. According to Wilhelm’s statement to police, he “just . . . snapped” and he and Murray wrestled on the floor. She hit him on the head with a bat, leaving him with a bruise.

Wilhelm took the gun out of his pocket. Murray ran to the bathroom and closed the door. He fired several shots through the door, and when he opened the bathroom door, he saw her slumped over and bleeding. He told her he was going to kill her. She moved to the bedroom and fell between the bed and the wall, telling him that she would “play nice,” according to Wilhelm’s statement. He told her she did not deserve to live. He shot her again and left the room. He explained to the police later that he wanted her to die.

Dolan saw Wilhelm exit the room, and said Wilhelm’s face was “scary.” He had heard his mother scream for help, and she had yelled something like, “‘Get out. He’s going to shoot me with a gun.’”

When Hamaker and Machal returned, only shortly after they had left, they heard Wilhelm and Murray arguing inside. They heard Murray say, “‘I’m sorry,’” several times, followed by what Machal described as a “loud bang” and what Hamaker characterized as a gun going off. They ran into the house. Hamaker noticed the dogs were locked in Wilhelm’s room, which Machal said had never happened before.

Machal went into Murray’s room and found her lying on the floor. She saw blood, and Hamaker saw the bathroom door was kicked in. Murray told Machal something to the effect of, “He shot me.” Machal called 911. While Machal was on the phone, Hamaker saw Wilhelm come out of his own bedroom with the dogs. He came into Murray’s room and threatened Hamaker and Machal, and told them to get out of his house. They left and continued speaking to 911, informing them that Wilhelm was alone in the house with Dolan. Unbeknownst to them, Dolan had left and gone to a neighbor’s home, who also called 911.

According to Wilhelm’s statement, he tried to kill himself after the murder. When the officers arrived on the scene, Wilhelm said, “Please tell me she’s dead, please.” He was taken into custody, and in addition to making various unsolicited statements, made a lengthy statement to police following Miranda warnings. His statement admitted he had shot Murray. He later said to an officer who was processing him that he “shot the b[–]. I shot her five f[–]ing times,” and she deserved to die.

An ambulance took Murray to the hospital, and she was pronounced dead. An autopsy showed she was shot six times.

In October 2012, Wilhelm was indicted on a single count for the murder of Murray. (Pen. Code, § 187, subd. (a)(1).) The indictment further alleged Wilhelm personally and intentionally discharged a firearm, causing death. (Pen. Code, § 12022.53, subd. (d).) The jury found Wilhelm guilty of first degree murder and found the firearm enhancement true. Wilhelm was sentenced to 25 years to life on the first degree murder count, and a consecutive sentence of 25 years to life for the firearm enhancement. He now appeals.

II

DISCUSSION

Standard of Review

Wilhelm’s only claim on appeal that would require reversal of the conviction is his contention that his statements to Michael that he was afraid of Murray were improperly excluded. A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197 [“In determining the admissibility of evidence, the trial court has broad discretion. . . . On appeal, a trial court’s decision to admit or not admit evidence . . . is reviewed only for abuse of discretion”].) Such rulings “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Further, even where evidence has been erroneously excluded or admitted, the judgment or decision shall not be reversed unless the reviewing court believes the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; §§ 353, 354.)

Exclusion of Statements to Neighbor

At trial, the prosecution objected to statements relating to Wilhelm’s purported fear of Murray as hearsay. Wilhelm refers specifically to two objections, both statements to his neighbor, Michael. The first question was: “Now, do you recall shortly before July the 8th, Mr. Wilhelm expressing a concern to you about his safety living at the . . . address? That he was concerned for his physical well-being?” The second question inquired if the witness knew that Wilhelm had “put a dead bolt . . . . [¶] . . . [¶] . . . on his bedroom door?” Both of these were objected to as hearsay, and both objections were sustained by the court.

Later, outside the presence of the jury, defense counsel asked the court to reconsider the issue. Counsel argued that evidence of Wilhelm’s alleged fear was premised on his state of mind under section 1250, and relevant to a heat of passion defense. After hearing argument, the court maintained its ruling, stating that the answers excluded were “only information that directly related to what the defendant said to this witness or somebody else.” The court determined those statements, while offered to prove Wilhelm’s state of mind, had “to be relevant have to be true. The gist of the statement from the defendant is, ‘I am afraid of her.’ If it is not true, it is not relevant.” Therefore, the court concluded, as a statement offered for the truth of the matter asserted, the statements were hearsay.

The court next made a statement which Wilhelm attempts to make much of, noting that section 1220, the admission of a party opponent exception to the hearsay rule, is not negated by section 1250. What the court appears to be getting at, however, is that section 1220 simply does not help Wilhelm in this instance, because he was attempting to introduce the evidence for the truth of the matter asserted rather than to establish his state of mind. Section 1220 cannot be used as an end-run around trial testimony and cross-examination. The court’s conclusion is correct, and Wilhelm’s attempts to cast this as reversible error by the trial court are unavailing.

The Attorney General interprets the trial court’s language about the truth of the statements as a finding that the statements were not admissible under section 1252. That section excludes evidence of a declarant’s state of mind if the statements were made under circumstances that indicate a lack of trustworthiness. Wilhelm briefs the issue in his reply brief. We do not believe this was the basis of the court’s ruling, which appears to have determined rather clearly that the statements were being offered for their truth, not Wilhelm’s state of mind. Thus, this argument appears to be a bit of a red herring. But we will discuss it in the interests of considering all tenable arguments that Wilhelm might have to offer.

“A hearsay statement that would otherwise be admissible under the state-of-mind exception . . . is inadmissible if made under circumstances that indicate the statement’s lack of trustworthiness [citations]. A statement is trustworthy within the meaning of section 1252 . . . when it is ‘“made in a natural manner, and not under circumstances of suspicion. . . .”’” (People v. Harris (2013) 57 Cal.4th 804, 843-844.) For example, a defendant’s tape-recorded conversations with his wife were deemed inadmissible in the penalty phase of a death penalty trial to prove remorse. The statements were untrustworthy because defendant’s main reason for making the statements was to placate his wife after his arrest. (People v. Smith (2003) 30 Cal.4th 581, 629.) “‘There was “ample ground to suspect defendant’s motives and sincerity” when he made the statements.’” (Ibid.) Further, the statements “must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ‘“made at a time when there was no motive to deceive.”’” (People v. Edwards (1991) 54 Cal.3d 787, 820.)

What we have here is a defendant who was in an ongoing, heated dispute with his former girlfriend and partner. He had already threatened her repeatedly at the time he made the controverted statements to Michael. Given the context, there was a significant “motive to deceive”; his claims of fear for his own safety could readily be viewed as an attempt to establish a self-defense claim. Accordingly, we find no abuse of discretion in the court’s decision to exclude them due to a lack of trustworthiness, if that was what the court intended to do.

Prejudice

Even if the court’s ruling was incorrect, we conclude the refusal to admit the statements was not prejudicial. Both parties agree the proper standard for prejudice here is People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Boyette (2002) 29 Cal.4th 381, 427-428.) Our inquiry is whether it is reasonably probable a result more favorable to appellant would have been reached had the evidence been admitted.

We conclude there was no such probability based on the two excluded statements to Michael. First, the information counsel was attempting to glean about the deadbolt on Wilhelm’s bedroom door was already before the jury, because it was in Wilhelm’s statement to the police: “I mean, literally, a week ago I put a dead-bolt on my bedroom door.” So the lack of Michael’s cumulative testimony cannot be deemed to be so harmful that a better result for Wilhelm would have been likely if that statement had been admitted.

As to the other question, whether Wilhelm was “concerned” about his physical well-being, there was also other testimony on this subject. Michael testified that shortly before the shooting, he provided Wilhelm with a gun and non-lethal bullets[2] after Wilhelm told him he had moved out of the master bedroom and was “concerned.” Michael stated he had given Wilhelm the gun as a result of something Wilhelm had told him, and that Michael understood the weapon would be used for a “defensive” reason. Accordingly, despite the court’s decision to exclude exactly what Wilhelm told Michael, the jury had the same basic information: that he had added a deadbolt to his bedroom door, and he was sufficiently concerned about Murray’s behavior to seek out a weapon. At best, the additional answers to the two questions in dispute would have been additive or cumulative, but there is no reasonable argument that those answers would have been so significant as to lead to a different result.

Wilhelm argues that the controverted evidence would have supported his arguments about provocation, heat of passion, or imperfect self-defense. To determine whether error was so prejudicial that reversal is required, we must consider “‘whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’” (People v. Moye (2009) 47 Cal.4th 537, 556.) We agree with the Attorney General that given the weight of the evidence, these arguments had no chance of succeeding with any reasonable jury.

This is not a close case. For a week leading up to the murder, Wilhelm stated his intent to kill Murray numerous times. Murray called the police to report Wilhelm’s threats against her, Wilhelm told her that she was “‘going to get what’s coming to you,’” and, notably, that she was “‘going to see god soon.’” On the day of the murder, he told Michael that he was leaving or would kill Murray, and told Gordon that “‘I think I’m going to kill [Murray].’” Indeed, Wilhelm could barely keep his mouth shut about his desire to hurt or kill Murray, telling another witness that he planned to physically assault her. Further supporting the jury’s conclusion that the murder was premeditated, Wilhelm took the gun and ammunition he used to kill Murray, and he locked Murray’s three dogs away in a different room. Immediately before the murder, Murray sent a text message stating that Wilhelm was singing, “I used to love her but I had to kill her.”

The manner in which the crime was carried out also supports premeditation. Here, the murder “‘was so particular and exacting that the defendant must have intentionally killed according to a “preconceived design”’” to kill. (People v. Williams (2018) 23 Cal.App.5th 396, 410.) According to Wilhelm’s own statement, he shot her three times through the bathroom door, and when he opened it and saw her lying on the floor, he told her, “I’m going to f[–]ing kill you.” He then shot her three more times.

Although this is already more than enough evidence of premeditation and deliberation, Wilhelm told witnesses after the murder that Murray “deserved” to die, and asked the police, “Please tell me she’s dead.” At the police station, he told the officer who was processing him that he shot “the b[–]” five times, and she deserved to die.

All of this overwhelming evidence supports that this brutal murder was motivated by animus and hatred, not fear. Adding additional testimony from Michael that Wilhelm said he was “scared” of Murray would not change these facts: Wilhelm wanted Murray dead, he threatened to kill her and planned to do so. After he shot her six times, he expressed that he had wanted her dead and that she deserved to die. None of this evidence is consistent with provocation, heat of passion, or imperfect self-defense. Indeed, the only result the jury could have reached – with or without the controverted questions – was that Wilhelm was guilty of first degree murder.

Firearm Enhancement

In a separate supplemental brief, Wilhelm argues that a statutory change requires an opportunity for the trial court to reconsider the imposition of the consecutive 25 years to life sentence for the personal use of a firearm enhancement attached to count one. Effective January 1, 2018, Penal Code section 12022.53, subdivision (h), was amended, by Statutes 2017, chapter 682, section 2, to allow a trial court to exercise its discretion to strike or dismiss such an enhancement at the time of sentencing: “The court may, in the interest of justice pursuant to [Penal Code s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”

The Attorney General agrees, albeit rather begrudgingly, with the import of this change in the law. So do we. Accordingly, the court must conduct a resentencing hearing and exercise its discretion on this point.

III

DISPOSITION

We reverse the imposition of the firearm enhancement, and remand for resentencing. In all other respects, the judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.