P. v. McClendon

Filed 2/24/06 P. v. McClendon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed with directions.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

Vernon Robert Walker and defendant, his accomplice, killed two fellow Marines for 10 pounds of marijuana and torched the victims' car containing their bodies. A jury convicted defendant of two counts of first degree murder with special circumstances and one count of arson. The court sentenced defendant to two terms of life without possibility of parole, plus three years.

Defendant appeals, claiming Miranda^[2] error, ineffective assistance of counsel, and judicial error in not granting witness immunity. He also challenges the $10,000 parole revocation fine under section 1202.45, which the People agree should be stricken. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1186.) We order the judgment modified by striking the parole revocation fine. Otherwise, we affirm.

2. Factual and Procedural Background

Defendant, Walker, and the two victims, Angel Wathen and Julio Vargas, were all Marines stationed in Twentynine Palms and involved in drug dealing.

On Saturday, November 1, 2003, Vargas told a fellow marine he was going to Ontario to sell drugs.

The next morning, the police located a grisly scene in Rancho Cucamonga. Near a dumpster, the police found blood and human tissue, including most of a human brain, shattered glass, spent bullets, an eyeglass earpiece, and bloody shoeprints and tire tracks. It appeared a person had been dragged across the concrete, causing his brain to detach from the skull.

Earlier that morning, the police had been called to a location in the desert near Twentynine Palms where Wathen's car had been incinerated with two human bodies inside. The bodies were identified as Wathen, in the front seat, and Vargas in the back.

Vargas's corpse was headless. The brain found in Rancho Cucamonga was his. Vargas had died from a shotgun wound, fired at the base of his skull at short range. Wathen died from a shotgun wound to the chest, severing his aorta and causing death in a few minutes.

In the car were a handgun magazine, probably for a .22-caliber automatic, and eyeglasses, matching the earpiece found in Rancho Cucamonga. Tire marks like those in Rancho Cucamonga were found near the burned car.

The police interviewed defendant several times. In his first statement to the police, defendant said Vargas had asked him if he knew someone who wanted to buy marijuana. Defendant contacted â€