Filed 11/28/05 P. v. Weyand CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. MARK EUGENE WEYAND et al., Defendants and Appellants.

2d Crim. No. B170505 (Super. Ct. No. F322845) (San Luis Obispo County)

Appellants Mark Eugene Weyand (Weyand), Justin Shea McCulloch (Justin) and Roselee Gail McCulloch (Roselee) were jointly tried before a jury and convicted of conspiracy to commit murder and first degree murder with financial gain and lying-in-wait special circumstances.^[1] (Pen. Code, §§ 182, 187, 189, 190.2, subd. (a)(1) & (15).)^[2] The jury found that Weyand had personally used a dangerous and deadly weapon (a knife) in the commission of the murder. (§ 12022, subd. (b)(1).) Appellants raise a variety of procedural, evidentiary and instructional challenges to their convictions. We modify the judgments to strike the parole revocation fines imposed by the court and to secure a calculation of presentence credits, but otherwise affirm the judgments and appellants' sentences of life without the possibility of parole.

FACTS

Justin was in the Army stationed at Fort Lewis, Washington during the late 1990's. Following his discharge, he told a number of people that he had ties to the Gambino crime family and was planning to form his own organization to traffic narcotics and firearms. Justin met and married Roselee, who held herself out as the head of the women in this "family."

Roselee had a son with Michael Sotelo, the victim in this case, who was on active duty with the California National Guard at Camp San Luis Obispo. Sotelo lived with his father and stepmother in Paso Robles. Roselee mentioned to several family members that her son was the sole beneficiary of Sotelo's servicemen's group life insurance policy.

Justin and Roselee recruited a number of people into their family. These were mostly younger military personnel whom they met at Club North, a bar near Fort Lewis: Mike MacDonald, Paul Machado, Michael Cave, Kenneth Cox, Kevin Durbin, Lucas Hershberger, Richard Hart, Jesse McGahuey, Dan and Juana Meyers, Tonya Lund, Jeffrey Bryant, Chris Layden, Bonnie Stone and codefendant Weyand.

In 1997, Justin invited Mike MacDonald to become his "consigliore." MacDonald agreed to do so. Justin asked MacDonald to kill the former boyfriend of a woman named Stacy. MacDonald drove the man around but realized he could not kill him and instead dropped him off at his house. Justin asked Paul Machado, another family member, to take MacDonald into the woods and kill him. Machado took MacDonald on a feigned "mission" to kill a man who owed Justin money, where he told MacDonald about the real plan and let him go. When Justin eventually learned that Machado had not killed MacDonald, he said he would not have done it either because there was no money in it.

In February of 2000, Michael Cave befriended Justin and Roselee and joined the family. Justin offered to have the following people murdered for Cave: Cave's former wife, his battalion commander and his detachment commander. Kenneth Cox was also recruited by Justin and Roselee, who told him they would be trafficking weapons and drugs and wanted him to be an "enforcer" who would make sure people paid them. Cox declined the offer. Justin and Roselee later told him they were planning to move to Texas to open a bar as a front for their illegal activities.

In 2000-2001, Justin asked Richard Hart to kill Dan Meyers for his insurance money. Hart declined. Justin also offered Hart $20,000 to go to California and kill Sotelo so they could collect the life insurance proceeds, which they believed would be paid out to Roselee's son. Hart did not agree to do so and did not believe they would find anyone to kill Sotelo. When Hart and his wife decided to divorce, Justin and Roselee asked him whether he wanted to have her murdered and asked whether he (Hart) was the beneficiary of her life insurance policy.

In August or September 2000, Justin and Rosalee asked Kevin Durbin to kill Sotelo in exchange for $5,000, indicating that Roselee was the beneficiary of Sotelo's life insurance policy. Durbin agreed, although he did not intend to kill Sotelo. Justin and Roselee provided Durbin with an address and directions to Sotelo's house in California, but Durbin reported back that he could not find him. Justin seemed upset and threatened Durbin, who eventually stopped associating with the family. Roselee told Durbin's girlfriend repeatedly that she wanted Sotelo murdered and that whoever did it would receive a portion of the insurance proceeds. She also discussed the plan with Tonya Lund, whose role in the family was tending the children.

Several family members met at a Days Inn in Tacoma, Washington in February 2001 and discussed killing Sotelo for the life insurance proceeds. Roselee said Sotelo had made a big mistake when he did not change their son as the beneficiary on the policy. She said that as her son's guardian, she would control that money. The family members discussed a "wish list" of things to purchase with the insurance money, including weapons, cars and clothing, and a house and bar in Texas. Justin and Roselee said they were planning on moving the family to Texas and expected the others to go AWOL and join them. They stated that the person who killed Sotelo would get $10,000 out of the insurance money, but no one accepted the offer. Roselee later approached several family members at Club North and asked which one of them wanted to make $20,000.

Lucas Hershberger joined the family in February 2001. After learning that Justin intended to do murders for hire and firearms and narcotics trafficking, he went to the military police and reported the family's planned criminal activities. Hershberger agreed to go under cover and reported several conversations to the military police and FBI. He continued to associate with the family after the investigation was closed. Justin told Hershberger that their plan was to murder Sotelo and collect the $250,000 that would be paid to Roselee's son.

In April 2001, Justin and Roselee asked Michael Cave to murder Sotelo and promised him $5,000 to $10,000 from the insurance proceeds. Cave was to commit the murder with Hershberger and leave a blue bandana at the scene so the police would think the killing had been done by the Crips street gang. Justin said he wanted them to take Weyand along as training. Cave had a disagreement with Justin and Roselee and left the family.

During the fall of 2001, Justin asked Jeffrey Bryant to travel to California and kill Sotelo. Bryant was told to take Weyand with him as a driver and to leave a blue handkerchief at the scene so it would appear the Crips had committed the murder. Weyand was also present during this discussion. Roselee later began berating Bryant because he had not yet committed the crime; Bryant and his wife left Washington because Bryant believed he was no longer in the good graces of the family.

Justin and Roselee decided to relocate to Texas and plans were made for family members to caravan from Washington in several cars. In October 2001, Justin and Roselee asked Jesse McGahuey to kill Sotelo for $10,000. McGahuey was to drive his car to California and meet another person there. He did not have money to go to California, so a back-up plan was devised. Weyand told McGahuey he was going to break off from the group on their way to Texas and would kill Sotelo. He had previously told a number of family members that he was willing to do the hit. Justin and Roselee discussed this plan with Chris Layden and Bonnie Stone.

In November 2001, the family members began their drive to Texas, traveling down through California. Justin and Roselee told Stone that Sotelo would be murdered at some point during the journey. Weyand rode in Stone's car and told her he was going to commit the crime. He took Stone's car when they reached Sacramento and split off from the group.

On November 7, 2001, Sotelo left his house at about 6:30 a.m. to attend a class. Weyand stabbed him several times as he walked to his car. Sotelo's father and stepmother heard him scream and saw that he was hurt when he dragged himself back inside the home. Paramedics responded to a 911 call. He was pronounced dead at the hospital.

Weyand drove to Texas and rejoined the family. Justin and Roselee were pleased to hear that Sotelo had been murdered, and Justin told Chris Layden to congratulate Weyand on a job well done. Weyand told Jesse McGahuey that he had waited for Sotelo in the dark of the early morning and had hidden in some bushes near the house. When Sotelo was going to work, he crept up behind him and stabbed him several times before running away. Weyand told Layden that he had waited for Sotelo in the shadows and had stabbed him, leaving him for dead. He said he had killed Sotelo so he could curry favor with the family and become the head hit man. He also wanted to receive a bigger percentage of the insurance money.

About a week after Sotelo's funeral, Roselee attempted to collect the life insurance proceeds but discovered that neither she nor her son was the named beneficiary. She made a trip to Fort Hood, Texas to try to get the money and returned, saying she was proud of herself because she had been able to put on an act and fake tears for "the poor bastard." Roselee returned very angry from another trip to Fort Hood, saying that all she was going to get was $10,000 and a lapel pin.

Lucas Hershberger had remained in Washington and agreed to cooperate with investigators. He placed a recorded telephone call to Justin and Roselee on February 2, 2002, in which Justin told him they were doing well in Texas and had made some connections down there. Roselee said there had been no witnesses to the murder and she was expecting to receive a total of $282,000. Hershberger spoke briefly to Weyand during the same call, but they did not discuss the killing.

Hershberger flew to Texas on February 13, 2002, where he was outfitted with an electronic recording device before meeting Weyand, Justin and Roselee. During a recorded conversation in the motel room they were sharing, Weyand told Hershberger the details of the Sotelo murder. Weyand said he had arrived in Paso Robles a few days before the killing to "scope the place out." He had previously purchased knives, which he sharpened and painted black. Weyand slept in his car at the same rest stop for three or four days. He was going to kill Sotelo on the second day, but decided against it because there were other people around. On the morning of the murder he dressed in black and covered most of his face. He hid until he saw Sotelo come outside and then approached him from behind, calling him by name to get him to turn around. He stabbed Sotelo using both hands and then his "watcher kind [of] took over because [he] was blacked out [sic]." Weyand woke up to find Sotelo on the ground and he "went in for another one" while Sotelo was still able to kick. He ran back to the car and drove away, not stopping until he reached New Mexico, where he buried the knives in the desert. Weyand said the killing was a "rush" and he could not wait to get another one under his belt. He had done it to get his "piece of the pie."

Weyand was arrested and interviewed by Investigator Haney of the San Luis Obispo County District Attorney's Office. He admitted killing Sotelo but said he had done it because he was told that Sotelo had abused his son. Weyand said he had taken Bonnie Stone's car to Paso Robles, bought some knives, and looked around for two to three days. He removed the license plate from the car and dressed in black with a ski mask on the day of the killing. It was dark and foggy and he stabbed Sotelo as he left his house in the early morning. Weyand claimed to have blacked out and then awakened with Sotelo's foot in his hand. He picked up the knives, drove to New Mexico and buried the knives in the desert. Justin and Roselee had offered him $20,000 for the hit. Although his main motive was to avenge Sotelo's son, he acknowledged the money would be nice. Weyand signed a written statement as well.

Dr. Abraham Nievod examined Weyand and diagnosed him as suffering from dependent personality disorder and schizoid personality disorder. He believed that Weyand, who was born with a cleft palate and abused as a child, would be especially vulnerable to being manipulated. A person with Weyand's diagnosis would typically suffer an extreme fear of abandonment and would be unlikely to leave a situation for the unknown. According to Dr. Nievod, a good manipulator will look for a particularly vulnerable victim over whom he or she can exercise undue influence.

DISCUSSION

Peremptory Challenges

Code of Civil Procedure section 231 establishes the number and manner of peremptory challenges available to a party and provides that when an offense is punishable by death or life without parole, the defendant and the People are each entitled to 20 challenges. When two or more defendants are tried jointly, their challenges shall be exercised jointly with each defendant entitled to five additional separate challenges; the People are then entitled to additional challenges equal to the number of separate challenges allowed the defendants. (Id., subd. (a).)

Appellants argue their right to a fair trial was undermined because they were required to jointly exercise the majority of their peremptory challenges even though their interests were not aligned. Our state Supreme Court has rejected similar contentions and we are bound by those decisions. (People v. Pinholster (1992) 1 Cal.4th 865, 911, and cases cited therein; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Crawford v. Washington

Appellants argue that their convictions must be reversed because the trial court admitted a number of hearsay statements which violated their Sixth Amendment right to confrontation under the principles enunciated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We agree that some of the evidence should have been excluded, but conclude appellants were not prejudiced.

Prior to Crawford, the United States Supreme Court had held that hearsay statements do not violate the confrontation clause if they fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." (Ohio v. Roberts (1980) 448 U.S. 56, 66.) In Crawford, the court held that regardless of their reliability, out-of-court "testimonial" statements are admissible only when the witness is unavailable and there has been a prior opportunity for cross-examination. The Crawford decision did not provide a comprehensive definition of "testimonial," but explained, "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at p. 68.) A statement may also be testimonial within the meaning of Crawford when it is "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Id. at p. 52; see also People v. Cervantes (2004) 118 Cal.App.4th 162, 173; but cf. People v. Taulton (2005) 129 Cal.App.4th 1218, 1223-1224.)

Weyand complains that a number of statements by Justin and Roselee implicated him in the crime but without them being subjected to cross-examination. These include statements they made about the family and its criminal activities while urging others to join, offers they made to commit murders for family members, and requests that family members commit murders. Such statements are not testimonial within the meaning of Crawford. Testimony "is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'. . . An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Crawford, supra, 541 U.S. at p. 51.) The challenged statements were made to friends and acquaintances, rather than to government officials, and their admission did not violate the Sixth Amendment.

Justin argues that a number of statements by Roselee and Weyand were testimonial and should have been excluded under Crawford: (1) Weyand's oral and written confessions to Investigator Hanley; (2) drawings made by Weyand during that interview of the knives he used to kill Sotelo, and replicas of the knives that were created based on the drawings; (3) Weyand's statements to Hershberger describing the killing, which were surreptitiously recorded; (4) statements by Weyand and Roselee during the recorded telephone conversation with Hershberger; and (5) writings found on Weyand when he was arrested in which he discussed the family and killing people. Roselee similarly challenges Weyand's statements to Hanley and Hershberger as a violation of Crawford.

The introduction of Weyand's writings and the statements to Hershberger did not violate Crawford because they were not testimonial. This evidence is not similar to the primary examples of testimonial statements given in Crawford, namely, preliminary hearing testimony, grand jury testimony, prior trial testimony or statements taken by police during a formal investigation, nor were they made under circumstances that would have led a reasonable person to believe they would be available for use at a future trial. (Crawford, supra, 541 U.S. at pp. 51-52; People v. Cervantes, supra, 118 Cal.App.4th at p. 173.) Hershberger's status as an informant does not render the statements the equivalent of those made during a police interrogation. The statements to him were made in informal settings at a time when the speakers did not know Hershberger was assisting law enforcement. (See United States v. Hendricks (3rd Cir. 2005) 395 F.3d 173, 183-184; United States v. Saget (2d Cir. 2004) 377 F.3d 223, 228-230 [defendant's statements to informant whose status was unknown were not testimonial under Crawford].)

In contrast, Weyand's statements to Investigator Hanley were "knowingly given in response to structured . . . questioning" by law enforcement and were clearly testimonial "under any conceivable definition" of that term. (Crawford, supra, 541 U.S. at p. 53, fn. 4; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1402.) His drawing of the knife, made during the same interview, was similarly testimonial in nature. But the evidence of Weyand's confessions, though highly incriminating, was cumulative to a number of admissions made by Justin and Roselee which showed that they had planned Sotelo's death and offered Weyand money to commit the killing. It was also cumulative to a number of nontestimonial statements made by Weyand to Hershberger, Layden and McGahuey, describing the crime itself. Nor did Weyand's drawing of the knife or the knife replicas have any prejudicial impact in a case where it was undisputed the victim had been stabbed a number of times. We can say beyond a reasonable doubt that the Crawford error did not contribute to the verdict and was unimportant in relation to everything else the jury considered on the question. (People v. Song (2004) 124 Cal.App.4th 973, 984.)

Bruton

Appellants argue that the court admitted a number of statements that violated their right to confrontation under Bruton v. United States (1968) 391 U.S. 123 (Bruton). We disagree.

In Bruton, the United States Supreme Court held that the admission of an incriminating statement by a nontestifying codefendant violates a defendant's right to confrontation, even if the jury is instructed to disregard the statement when determining the defendant's guilt or innocence. This rule does not apply to statements by a coconspirator that are made during and in the furtherance of the conspiracy and that are admissible under the coconspirator exception to the hearsay rule. (Evid. Code, § 1223; People v. Roberts (1992) 2 Cal.4th 271, 304.) Nor does it require the exclusion of statements otherwise admissible as a declaration against penal interest. (Evid. Code, § 1230; People v. Greenberger (1997) 58 Cal.App.4th 298, 326-334.)

Weyand argues that Bruton required exclusion of a number of statements by Justin and Roselee in which they solicited others to join the family and offered to commit murders for family members. Although he has not identified these statements with particularity, the general categories he describes do not present a Bruton problem because they do not directly implicate Weyand in Sotelo's murder. And assuming that some of them did, their admission was harmless beyond a reasonable doubt in light of Weyand's confessions to Investigator Haney and his recorded statement to Hershberger describing the details of the killing.

Justin argues that his rights under Bruton were violated because the court admitted a number of statements by Weyand and Roselee that incriminated him: (1) Weyand's confessions to Investigator Haney; (2) Weyand's statement to Hershberger and family members explaining that he had committed the killing to gain the respect of the family; and (3) Roselee's statements to numerous family members regarding a plan to kill Sotelo. Roselee similarly contends that Weyand's confessions to Haney and statements to Hershberger violated Bruton.

We have already concluded that the introduction of Weyand's confessions to Haney were erroneous, though not prejudicial. Bruton error, like Crawford error, does not require reversal when it is harmless beyond a reasonable doubt; hence, any error under Bruton in the admission of the confessions does not require reversal. (See People v. Song, supra, 124 Cal.App.4th at p. 984.)

Weyand's statements describing the killing to Hershberger and other family members did not violate Bruton if they were admissible as declarations against interest under Evidence Code section 1230, which creates a hearsay exception for a statement by an unavailable witness which "so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." Because a declaration against interest is not a "firmly rooted hearsay exception," it survives a confrontation clause challenge only if it contains "particularized guarantees of trustworthiness." (Lilly v. Virginia (1999) 527 U.S. 116, 136; People v. Greenberger, supra, 58 Cal.App.4th at p. 334.) Weyand was speaking to people he believed to be his friends and was not attempting to deflect blame for the killings onto Justin or any other person. His statements were sufficiently trustworthy to be admitted under section 1230, and did not violate Justin's and Roselee's rights under Bruton.

Nor did Roselee's statements to other family members about the killing implicate Justin's rights under Bruton. Many of these statements were admissible notwithstanding Bruton because they were solicitations to kill Sotelo and were thus made in the furtherance of that conspiracy under Evidence Code section 1223. (See People v. Brawley (1969) 1 Cal.3d 277, 287.) Other statements qualified as declarations against interest. And to the extent that some of Roselee's statements did not fall within these exceptions, their admission was harmless beyond a reasonable doubt in a case where the same witnesses testified to similar statements by Justin himself.

Evidence of Larger, Uncharged Conspiracy

Appellants were charged with and convicted of a conspiracy to murder Sotelo, based on overt acts which began in February 2001 and ended with Roselee's attempt to collect insurance proceeds between November 2001 and February 2002. Over defense objection, the prosecution introduced evidence of a "larger" conspiracy by Justin, Roselee and others to form and find recruits for the family. Some of the statements offered in support of this conspiracy preceded the dates alleged for the charged conspiracy to commit murder. Appellants complain that this evidence should have been excluded as irrelevant and unduly prejudicial under Evidence Code section 352. We are not persuaded.

A trial court has broad discretion when determining the relevancy of evidence and its potential for undue prejudice. (People v. Smithey (1999) 20 Cal.4th 936, 973; People v. Ayala (2000) 24 Cal.4th 243, 282.) Its ruling will not be reversed on appeal unless the defendant shows a clear abuse of this discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Criminal conduct other than that charged is relevant and admissible when it tends to show some material fact other than criminal disposition, such as intent, motive or the existence of a common design or plan. (Evid. Code, § 1101, subd. (b).) Evidence of a larger conspiracy to create a crime family tended to show a motive for Sotelo's murder, namely, that money was needed to get the enterprise off the ground. It also tended to show that the murder was part of a common design or plan, because the jury could reasonably infer that the murder was part of "'a larger continuing plan, scheme, or conspiracy of which the present crime on trial is a part.'" (People v. Sam (1969) 71 Cal.2d 194, 205.) The evidence was not unduly prejudicial in a case where the jury would inevitably hear about numerous attempts to solicit Sotelo's murder and the murder itself.

Appellants argue that the court should have excluded the evidence that Justin and Roselee had approached Paul Machado about killing Mike MacDonald in 1998. The court reasonably concluded that these statements were part of the larger conspiracy to form a crime family to commit murders for financial gain and that they tended to show a common plan or scheme.

In People v. Remiro (1979) 89 Cal.App.3d 809, members of the Symbionese Liberation Army (SLA) murdered a school superintendent and attempted to murder a deputy superintendent as part of an attack on the "fascist ruling class." (Id. at pp. 815-816.) Defendants objected to "evidence of the broader scope of the SLA conspiracy, of which the . . . murder-assault were but a single manifestation." (Id. at p. 841.) The court held that the challenged evidence was "relevant and admissible to show the nature and scope of the conspiracy which spawned the plans to murder [the victims]." (Id. at p. 843; see also People v. Manson (1976) 61 Cal.App.3d 102, 155-156.) So too here.

Appellants complain that the court should have held a comprehensive hearing under Evidence Code section 402 before allowing witnesses to testify to the larger conspiracy and should have instructed the jury as to when that conspiracy ended. The court was not required to hear from every witness to the larger conspiracy when there was an adequate offer of proof and considerable argument about the admissibility of the evidence. The precise end date of the larger conspiracy was a matter for the jury's determination.

Denial of Motion to Sever

Appellants argue that the trial court should have granted their pretrial motions to sever and claim that its failure to do so deprived them of due process and their right to a fair trial. We reject these contentions.

Joint trials are generally preferred for defendants charged with the same crime(s). (§ 1098; People v. Alvarez (1996) 14 Cal.4th 155, 190.) Severance may be appropriate when there is an incriminating confession by a codefendant that would not be admissible against the party seeking severance, when the jury is likely to be confused by the evidence on multiple counts, when the defendants have conflicting defenses or when there is a possibility that at a separate trial a codefendant would give exonerating testimony. (People v. Hardy (1992) 2 Cal.4th 86, 167.) The trial court has broad discretion when ruling on a pretrial motion for severance, but a reviewing court may reverse a conviction when, because of consolidation, "gross unfairness" has deprived the defendant of a fair trial. (People v. Bradford (1997) 15 Cal.4th 1229, 1314-1315; People v. Pinholster, supra, 1 Cal.4th at p. 933.)

There was no abuse of discretion or gross unfairness in this case. The evidence against all three defendants was intertwined and was largely cross-admissible. Although Weyand's confession to Investigator Haney should not have been introduced against Justin and Roselee, they were not prejudiced by its admission in light of the other evidence linking them to the killing. Contrary to Justin's argument, this is not a case where the evidence was disproportionately strong as to one defendant. All three defendants made a number of admissions implicating themselves in the murder and conspiracy and the same witnesses frequently testified to incriminating actions and statements by all three defendants. Weyand's defense counsel argued that Weyand had been unduly influenced by Justin and Roselee; Justin's and Roselee's counsel argued that Weyand acted without their authorization, but these defenses were not so contradictory that separate trials were required to ensure fairness. The jury would have heard most of the evidence concerning the other defendants even if they had been separately tried.

CALJIC No. 2.07

Appellants argue that CALJIC No. 2.07 allowed the jury, rather than the court, to decide the admissibility of the uncharged conspiracy evidence. They complain the court never ruled on the purpose for which that evidence could be considered. Reversal is not required.

CALJIC No. 2.07 advised the jury of the following: (1) if one or more defendants made statements soliciting murder that were not charged as an offense, those statements could not be considered against the other defendants; (2) evidence of a declarant's statement could be considered to show the declarant's criminal intent or intent to aid and abet another; (3) evidence of statements soliciting a murder that was not charged as an offense could show a characteristic method, plan or scheme; (4) Weyand's out-of-court statements could be considered to show that he committed a criminal act and might prove that Justin and Roselee were coconspirators or aided and abetted in such conduct; (5) evidence of out-of-court statements by a defendant may tend to prove with other independent evidence that the conspiracy charged in count two existed when the statements were made, and could be considered against the codefendants only if jurors found a conspiracy under other instructions; and (6) admissions should be viewed with caution.

CALJIC No. 2.07 did not require the jury to rule on the admissibility of statements made during the "larger" conspiracy. The court admitted that evidence when it allowed testimony on the subject, and this instruction simply placed limitations on the use of that and other evidence. The jury was also instructed on other crimes evidence (CALJIC Nos. 2.50, 2.50.1) and the consideration of coconspirator statements made in the furtherance of a conspiracy (CALJIC Nos. 6.11-6.21).

The only portion of the instruction that was arguably problematic was the admonition that Weyand's statements could be considered to show that Justin and Roselee were coconspirators or aiders and abettors, because it allowed the jury to consider his testimonial statements to Investigator Haney when determining Justin's and Roselee's guilt. But we have elsewhere concluded the admission of this statement against Justin and Roselee was harmless beyond a reasonable doubt and reversal is not required.

Cross-Examination of Dr. Nievod

Justin argues that he was denied his Sixth Amendment right to confront witnesses because the court restricted his ability to cross-examine Dr. Nievod, the clinical psychologist whom Weyand called as an expert. We disagree.

Dr. Nievod testified that Weyand suffered from dependent personality disorder, which made him more susceptible to the undue influence of others. He was not permitted to testify about Justin's conduct and how that might have affected Weyand. Justin's trial attorney sought to question Dr. Nievod about whether he believed that Weyand was "puffing" or trying to build himself up when he described the crime to Justin and Hershberger and whether he thought Weyand was hallucinating when he killed Sotelo. Counsel also indicated that he wanted to question Dr. Nievod about whether Justin was a manipulator. The court ruled that such questions would be improper.

The court did not abuse its discretion by limiting cross-examination on these subjects. Counsel's proposed questions about Weyand would have violated section 29, which precludes an expert from offering an opinion about whether an accused had a particular mental state at the time of the offense. The proposed question about Justin was not an appropriate subject for cross-examination when the court had excluded testimony about Justin's actions during direct examination. Nor does it appear that testimony about Justin would have been helpful when Dr. Nievod's written report showed that he believed Justin to be a manipulator who took advantage of Weyand.

CALJIC No. 3.32

The court gave a version of CALJIC No. 3.32 that read, "You have received evidence regarding a [mental disorder] of the defendant MARK WEYAND at the time of the commission of the crimes charged [namely, murder, conspiracy to commit murder] [in Counts one and two]. You should consider this evidence solely for the purpose of determining if you find defendant MARK WEYAND guilty of Counts One and Two, whether the enhancement that said defendant committed the murder for financial gain is true or not true." Weyand argues the evidence should not have been limited to the financial gain special circumstance, but was also relevant to determine whether he killed with premeditation and deliberation.^[3]

Section 28, subdivision (a) allows a defendant to present evidence that he suffered from a mental disease, disorder or defect when such evidence is relevant to whether he "actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." Dr. Nievod testified that Weyand's dependent personality disorder made him susceptible to psychological manipulations and his schizoid personality disorder made him prone to brief psychotic episodes during periods of stress. Weyand acknowledges that these mental disorders would not have eliminated his culpability for murder, but he argues they could have negated the element of premeditation and deliberation and rendered the killing murder in the second degree rather than the first degree.

"Premeditated" means "considered beforehand"; "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (People v. Mayfield (1997) 14 Cal.4th 668, 767.) Nothing in Dr. Nievod's testimony could reasonably negate the overwhelming evidence that the murder was premeditated and deliberate. The evidence was clear that Weyand decided to kill Sotelo when he was still in Washington State and that he drove to Paso Robles for that purpose. There he spent several days watching Sotelo's house and waiting for an opportunity to kill him. When that opportunity arrived, he ambushed Sotelo outside his home, fled the scene, discarded the knives used in the attack, and met the other appellants in Texas, bragging about what he had done. Weyand's mental disorders might have partially explained his motivation for the killing, but they did not prevent him from considering his actions beforehand and reflecting on what he was doing.

Even if we assume the evidence of mental disorder had some bearing on the issue of premeditation, reversal is not required. The jury was instructed on lying in wait as an alternative theory of first degree murder. It necessarily found guilt under this theory when it returned true findings on the lying-in-wait special circumstance, rendering harmless any errors in the instructions on premeditation.

Duress

The trial court denied Weyand's request for an instruction on duress as a defense to the murder charge. We reject his claim that this was error. Duress is not a defense to murder and does not reduce that offense to manslaughter. (People v. Anderson (2002) 28 Cal.4th 767, 780-781.) Additionally, the defense would not apply to Justin and Roselee because there was no evidence that they were personally subject to duress. (See ante, fn. 3.)

CALJIC No. 8.73.1

When Weyand described the stabbing to Hershberger and Layden, he told them that while waiting in his car, he had seen ghosts and a rose had encouraged him to stab Sotelo.^[4] Dr. Nievod testified that a person with Weyand's diagnosis would suffer from psychotic breaks in times of stress and would at those points be unable to recognize reality. Based on this evidence, Weyand argues that the jury should have been given CALJIC No 8.73.1: "A hallucination is a perception that has no objective reality. [¶] If the evidence establishes that the perpetrator of an unlawful killing suffered from a hallucination which contributed as a cause of the homicide, you should consider that evidence solely on the issue of whether the perpetrator killed with or without deliberation and premeditation." (See ante, fn. 3.)

Evidence that a defendant was "provoked" by a hallucination will not reduce a homicide from murder to manslaughter, because under the provocation/sudden quarrel variant of voluntary manslaughter, "[a] perception with no objective reality cannot arouse the passions of the ordinarily reasonable person." (People v. Padilla (2002) 103 Cal.App.4th 675, 679.) But it may reduce a first degree murder to murder of the second degree when the defendant was subjectively provoked by that hallucination. (Ibid.) Weyand contends that a jury instructed with CALJIC No. 8.73.1 could have determined that he was hallucinating and that, as a result, he killed Sotelo in a heat of passion negating the element of premeditation and deliberation.

There was little, if any, evidence to support the theory that Weyand was hallucinating when he actually killed Sotelo. In any event, his bizarre statements about ghosts and a talking rose do not demonstrate provocation that would negate the mental state required for first degree premeditated murder. This case is much different than People v. Padilla, supra, 103 Cal.App.4th 675, in which the trial court erroneously excluded evidence that the defendant had killed the victim while hallucinating that the victim had killed his family. Such evidence, if credited by a jury, would negate the element of premeditation and deliberation, because a defendant who harbored this irrational perception would be acting on impulse, albeit one not recognized as reasonable under the law. By contrast, Weyand formulated a plan to kill Sotelo, drove hundreds of miles to do so, and waited for several days until the opportunity arose to carry out his plan. Encouragement from a talking rose and visits by ghosts during a brief part of this journey would not negate this careful planning and consideration of the murder.

Finally, the true finding on the lying-in-wait special circumstance renders harmless any error in the omission of CALJIC No. 8.73.1, because the jury necessarily found Weyand guilty of first degree murder under the alternative theory of lying in wait. Evidence of hallucinations would not have affected his guilt under this theory.

CALJIC No. 8.69

Appellants contend that CALJIC No. 8.69 erroneously suggested they could be convicted of conspiring to murder Sotelo even if they did not personally harbor an intent to kill. We agree the instruction was misleading, but conclude it was not prejudicial.

A conspiracy to commit murder may exist if, among other things, "at least two" of the participants intended to kill. (People v. Petznick (2003) 114 Cal.App.4th 663, 680-681.) A defendant can be guilty of this conspiracy only if he or she is one of the participants who harbors this intent. (Id. at p. 681.) CALJIC No. 8.69 advised the jury that the People were required to prove, "At least two of the persons to the agreement harbored express malice aforethought." This was misleading because it suggested that a defendant need not be one of those two conspirators to be guilty. (Petznick, at p. 681.)

Reversal is not required because it appears beyond a reasonable doubt that this error did not contribute to the verdict. (People v. Petznick, supra, 114 Cal.App.4th at p. 681.) Under the instructions given, the jury could not have convicted appellants of first degree murder with special circumstances if they did not also believe that each of them acted with the intent to kill necessary for a conviction of conspiracy to commit murder. CALJIC No. 8.11 defined murder as an unlawful killing with express malice aforethought, i.e., with "an intention unlawfully to kill a human being." No instructions were given on implied malice as an alternative theory, and in convicting appellants of murder, the jury necessarily concluded that Weyand, the perpetrator, acted with an intent to kill. CALJIC No. 3.01 advised the jury that a defendant was an aider and abettor only if there was proof he or she acted "[w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime," meaning that Justin and Roselee would not have been convicted of murder if they did not also harbor an intent to kill. The true findings on the lying-in-wait and financial gain special circumstances required that both the perpetrator and accomplices who were not the actual killer intend to kill. (CALJIC Nos. 8.80.1, 8.81.1, 8.81.15.1.)

The murder convictions and the true findings on the special circumstances show that the jury believed appellants acted with the intent requisite for the conspiracy charge. The defect in CALJIC No. 8.69 was not prejudicial.

Lying-in-Wait Special Circumstance

The lying-in-wait special circumstance required proof of an intentional killing accompanied by (1) a concealment of purpose; (2) a substantial period of time of watching and waiting for an opportune time to act; and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Michaels (2002) 28 Cal.4th 486, 516.) Justin and Roselee argue the evidence did not support a true finding on this allegation, because the only evidence of the manner in which Sotelo was killed came from Weyand's inadmissible statements to Investigator Haney, Justin, Hershberger and others. We have already concluded that Weyand's statement to Hershberger and other members of the family were properly introduced and could be considered against Justin and Roselee, even if the statement to Haney was not admissible against them. Those statements reveal that Weyand ambushed Sotelo on a dark, foggy morning in front of Sotelo's home, a classic lying-in-wait scenario.

Justin and Roselee argue that the lying-in-wait special circumstance does not extend to aiders and abettors like themselves. They claim the plain language of the provision, which applies when the "defendant intentionally killed the victim by means of lying in wait," is most reasonably read to apply only to the actual killer. (See § 190.2, subd. (a)(15).) We disagree. Section 190.2, subdivision (c) provides, "Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4." No case has been cited that suggests this provision does not extend to a murder committed by means of lying in wait under subdivision (a)(15). (See People v. Robinson (1990) 221 Cal.App.3d 1586, 1588-1591 [lying-in-wait special circumstance applied to non-killer].)

Motion to Dismiss Special Circumstances/Cruel and Unusual Punishment

Weyand argues that the court abused its discretion when it declined to dismiss the special circumstance allegations against him based on his youth, vulnerability and psychological state. We disagree. Section 1385.1 provides, "Notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court . . . ." Assuming a court retains the power to strike special circumstance allegations before a verdict is reached, the court did not abuse its discretion when it denied Weyand's motion after finding that his personal difficulties "would pale in comparison to the facts and circumstances of the crime, his manner in which he committed the crime, his statements after he committed the crime of wanting to do it again and enjoying it . . . ."

We also reject Weyand's claim that a penalty of life without the possibility of parole is cruel and unusual punishment because it is "'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197.) We agree with the trial court that Weyand's "personal difficulties" come nowhere close to excusing such a calculated, violent and remorseless crime.

Cumulative Error

Appellants argue that the cumulative effect of the trial errors requires reversal even if the individual errors do not. We reject the claim. (People v. Seaton (2001) 26 Cal.4th 598, 691-692.)

Fines and Credits

The court imposed parole revocation fines under section 1202.45 even though appellants were sentenced to life without the possibility of parole. The People agree these fines must be stricken. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185-1186.)

Appellants contend the court should have calculated their credits for the actual time spent in presentence custody. The People respond that such an exercise would be a "trifle" where the sentence imposed is life without the possibility of parole. Section 2900.5, subdivision (a) requires the court to calculate presentence credits for "all felony and misdemeanor convictions." The superior court must amend the abstracts of judgment to strike the parole revocation fines; when it does so, it should calculate the actual custody time of each appellant and include that information on the amended abstracts of judgment.

DISPOSITION

The judgments are modified to strike the parole revocation fines under section 1202.45 and to include a calculation of the days each appellant actually spent in custody before sentencing. The superior court shall prepare modified abstracts of judgment and shall forward them to the Department of Corrections. As so modified, the judgments are affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Madeline McDowell, under appointment by the Court of Appeal, for Defendant and Appellant Mark Eugene Weyand.

Corinne S. Shulman, under appointment by the Court of Appeal, for

Defendant and Appellant Roselee Gail McCulloch.

Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant Justin Shea McCulloch.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Joseph P. Lee, J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] The McCulloch defendants are referred to by their first names to avoid confusion.

^[2] All statutory references are to the Penal Code unless otherwise stated.

^[3] Although Justin and Roselee have joined in those arguments by Weyand which inure to their benefit, this argument does not assist them. Justin and Roselee were convicted as conspirators/aiders and abettors of Weyand and did not present any evidence suggesting they suffered from any mental disorders. Once it is proved that the perpetrator committed the actus reus of an offense, an aider and abettor's liability must be assessed according to his or her own mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)

^[4] Weyand told Hershberger that while he was waiting at the truck stop the morning of the killing, he saw three people in his rear view mirror, and "the rose in Bonnie's car starts talking to me. [Laughs.] I think it was my watcher and I'm thinking there were actually three ghosts there, but I'm not sure, 'cause I saw them. I don't know--either it was in my mind or something. But I think the rose was actually my watcher, because it said, 'Okay, when I tell you to go, go.' I'm like, fuck it. 'Go, go now.' ' I said, go. Go! God dammit, if you don't start fuckin' moving I'm gonna kick your ass.' You're a rose, you ain't gonna. 'I don't give a shit, I'm gonna kick your ass if you don't go.' Okay. I popped the seat up and drove away."