P. v. Fletcher



P. v. Fletcher


Filed 10/23/07 P. v. Fletcher CA2/5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


SECOND APPELLATE DISTRICT


DIVISION FIVE



THE PEOPLE,


Plaintiff and Respondent,


v.


MATTHEW FLETCHER et al.,


Defendants and Appellants.



B183712


(Los Angeles County


Super. Ct. No. PA040748)



APPEAL from a judgment of the Superior Court of Los Angeles County.


Ronald S. Coen, Judge. Affirmed.


Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Matthew Fletcher.


David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Jennifer Fletcher.


Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, John R. Gorey, David E. Madeo and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.


_




Appellants Jennifer and Matthew Fletcher were found guilty, following a jury trial, of one count of first degree murder in violation of Penal Code section 187,[1]subdivision (a). The jury found true the special circumstances allegations that the murder was committed while lying-in-wait and for financial gain within the meaning of


section 190.2, subdivisions (a)(1) and (a)(15). The jury also convicted the two of conspiracy to commit murder and various insurance fraud offenses. These convictions all arose from the murder of Jennifer's then-husband, Joel Shanbrom. The jury also convicted Matthew of one count of bigamy in violation of section 281, subdivision (b)(3). Both appellants were sentenced to life in prison without the possibility of parole.


Appellants now appeal from the judgments of conviction. We affirm those judgments.


Facts


In 1996, Jennifer Shanbrom and her husband Joel worked for Primerica, a financial services firm whose products included life insurance. Joel also had a full-time job as a police officer for the Los Angeles Unified School District ("LAUSD"). In December of that year, Jennifer attended a Primerica convention in St. Louis without Joel. There, she met Matthew Fletcher, another Primerica employee from the Los Angeles area.[2] Bret Siers, a regional vice-president, noticed that Mathew and Jennifer were together a lot at the convention. He stated that they danced together in a way that "was different than the way married people who aren't married to each other would traditionally dance." One night, Jennifer did not return to her hotel room until 5:00 a.m. She said that she was up all night talking with Matthew.


Steve Gleit, who was also at the convention, was for a time a housemate of Matthew's. He testified that after the convention, Jennifer frequently spent the night at the house and engaged in sexual relations with Matthew.


While Jennifer was having an affair with Matthew, she made disparaging comments about Joel. Among other things, she said that he was lazy, stupid and no fun. She complained to Frank Congelosi, a friend of Joel's, that Joel was lazy, "only a school cop," and no good in bed. She told Congelosi: "If Joel got killed, I would get a million dollars." She mentioned the million dollar figure about ten times. She indicated that would be the amount of the proceeds if Joel was "killed in the line of duty."


In January 1998, Rossana Shanbrom, who was married to Joel's brother James, went to a bookstore with Jennifer. There, Jennifer picked up a wedding magazine and asked Rossana, who was in the bridal business, if she could make a dress shown in the magazine for less than the listed price. Rosanna asked Jennifer if she wanted the dress because she was planning to renew her vows with Joel. Jennifer replied that she was looking at wedding dresses "For when I get married again."


On February 28, 1998, Joel saw Elaine Alvarez, a licensed clinical psychologist and marriage counselor. Alvarez told Joel that he should talk with Jennifer and ask her to limit her contact with Matthew and should also speak to Matthew about Joel's concerns about a possible affair.[3]


On March 18, 1998, Jennifer's mother, Diana Bates, was living with Jennifer, Joel and their preschool age son Jacob in the Shanbrom's house. She returned home from dinner and a movie to find Joel on the couch with gunshot wounds. She called 911 to report the "murder" of her son-in-law, Joel Shanbrom, a police officer with the Los Angeles Unified School District.


When police arrived at the Shanbrom house, they were greeted by Bates, who told them that she thought the victim might have shot himself. Police found Joel's body on a couch in the family room. He was dead. He appeared to the officers to have been sitting watching television in a relaxed state when shot. No weapon was found on the couch.


Police found no signs of forced entry into the house, and no open doors. A sliding door at the back of the house was unlocked, however. The downstairs was a little messy, but did not appear to have been ransacked. Joel's service weapon was found in a fanny pack on top of the refrigerator. His badge was not in the fanny pack.


More officers arrived on the scene. Officer Daniel Garcia and his partner searched the house to make sure it was secure. Officer Garcia noticed that the rooms in the upstairs of the house appeared to have been ransacked, with drawers removed and the contents dumped on the floor. Officer Garcia thought that it was "funny" that the downstairs appeared normal while the upstairs appeared ransacked.


Officer Teresa Montoya discovered that the door to the master bathroom was locked. She heard a woman's voice and identified herself as a police officer. After another officer placed his badge under the door, Jennifer opened the door and came out holding Jacob wrapped in a towel.


Jennifer told Officer Montoya that about 7:00 or 7:30 p.m., she was giving Jacob a bath in the north bathroom. Jacob was playing with his toys. She heard one or two gunshots downstairs, picked up Jacob and ran to the master bathroom and locked herself in. She heard a male voice, possibly a Black male voice, state: "What you do dat for?" Jennifer stated that she had been in the bathroom for hours before the police came. After being taken out of the house, Jennifer told Officer Montoya that Joel's badge and gun were on top of the refrigerator and that there might be another gun in the house.


Officer Thomas Bracia arrived about 2:00 a.m. and assisted in the search for evidence. He discovered that a gate leading from the backyard to the railroad tracks in the back of the house was unlocked. He did not see a lock in the area.


Detective Brian McCartin arrived about 3:30 or 4:00 a.m. He was in charge of the crime scene. According to Detective McCartin, Joel's LAUSD badge was not found at the crime scene.


Detective McCartin observed that the downstairs of the house did not appear to be disturbed, but the upstairs appeared to have been ransacked. The drawers in the dresser, vanity and bureau in the master bedroom had been pulled and the contents dumped on the floor. The contents of a jewelry box were strewn on the floor. Drawers were pulled open in Jacob's bedroom, but the contents had not been removed. There was a portable telephone on the master bed, a loaded .380 Walther PPK automatic in the closet, clearly visible to anyone passing through from the bedroom to the bathroom, and a bowie knife was on the floor of the master bedroom.


An examination of the north bedroom showed that there was an inch of clear water in the bathtub and that Jacob's toys were outside the bathtub. The water level in the bathtub remained constant during the 14 hours Detective McCartin spent at the house.


A metal detector search of the backyard and a search by 15 police recruits of the backyard, the neighbor's yard and the area surrounding the railroad tracks did not uncover a lock or any other evidence.


Barbara Romney, the Shanbrom's next-door neighbor, told police that the area was very quiet and that if someone was walking on the railroad tracks or around the neighborhood, a pair of dogs would bark loudly. She did not hear any barking on the evening of March 18. She did hear a loud noise about 8:30 p.m.


Dr. Vladimir Levicky, a deputy medical examiner with the Los Angeles County Coroner's Office, performed the autopsy on Joel and initially estimated he died at approximately 10:00 p.m. on March 18, 1998, from multiple shotgun wounds to the head. Dr. Levicky, however, modified his opinion as to the time of death and stated that, if Joel was alive at 8:05 p.m. and dead at 9:15 p.m., Joel died closer to 9:00 p.m. than 8:00 p.m. The head wounds were in the right eye, in the right cheek, and in the back of the head. Three lead fragments were recovered from the shotgun wound to the right eye. Multiple pellets were recovered from the other shotgun wounds.


The shotgun wound to the right eye caused severe injury to the head and destroyed the brain stem. It was an instantaneous fatal wound which caused an immediate cessation of all bodily functioning. The wound was marked by the presence of tattooing, indicating the muzzle of the shotgun was held at a distance of only one or two feet from Joel's head at the time it was fired. The right eyelid was lacerated, indicating the eye was closed when struck with the bullet. Dr. Levicky could not determine whether Joel was standing at the time this wound was inflicted.


The shotgun wound in the right cheek entered on the side of the cheek and perforated the soft tissues of the cheek and partially perforated the mucosa of the mouth. This wound was "very serious" but not necessarily fatal unless not treated. The wound would have rendered Joel unconscious. The direction of the wound was from back to front and up to down. The muzzle of the shotgun was held at a distance of approximately four to five feet from Joel when fired. Dr. Levicky recovered shotgun pellets (birdshot) from this wound in the tissues of the cheek and inside the mouth. Wadding was recovered in the muscle of the right cheek. He also recovered several pellets from Joel's stomach which had been swallowed during the infliction of the wound. The trajectory of the shot was slightly from back to front and downward so that the shooter was in an elevated position to Joel.


The shotgun wound in the back of the head was a "tangential" shot fired at a distance of four to six feet. Although the wound was superficial and just scratched the surface of the head, it was a "through and through" wound which clipped off part of the scalp and caused a lot of bleeding. The wound probably rendered Joel unconscious or at least stunned him.


Dr. Levicky determined that Joel was either seated or lying back when he was shot. The wounds were probably inflicted close in time and in the following order: the back of the head, the right cheek, and the right eye. Dr. Levicky opined that "several minutes" elapsed between the infliction of the first wound to the back of the head and the last wound to the right eye. He also opined based on his findings that the last two wounds (i.e., the wound to the right cheek and the wound to the right eye) were inflicted closer in time than the time between the first wound (i.e., the wound to the back of the head) and the second wound (i.e., the wound to the right cheek).


Ronald Raquel, a criminalist assigned to the Scientific Investigation Division of the Los Angeles Police Department, reviewed photographs of the crime scene and analyzed items recovered from the crime scene, including a throw pillow, a pillow case, an Afghan blanket, and Joel's clothing (i.e., a bloodstained T-shirt, bloodstained sweat pants, a pair of socks, and a pair of underwear). The pattern of blood on the throw pillow, as well as the presence of pellets inside the pillow, indicated the pillow was underneath Joel's head at the time he was shot in the back of the head. The high-velocity blood spatter pattern on Joel's T-shirt indicated that Joel's chin was resting directly on his chest when the spatter was created by the wound to the right eye. The pattern of the spatter appeared to be "back spatter" where the blood is directed backwards toward the cause of the wound. Based on the lack of blood on Joel's socks, as well as his other findings, Mr. Raquel opined that Joel was not standing at the time he was shot; rather, Joel was slumped on the couch in the position he was found when he was shot.


Richard Maruoka, a criminalist assigned to the Firearms Analysis Unit of the Los Angeles Police Department as a firearm's examiner and supervisor, examined the firearms-related evidence recovered at the crime scene and during the autopsy. Mr. Maruoka concluded that a .410 gauge shotgun was used to fire the shots into Joel's head. The .410 shotgun was used primarily for trap and skeet shooting or hunting. In over 13 years of investigating firearms, the instant case was the first time Maruoka could remember a .410 shotgun being used in a case.


Early in the police investigation, suspicion focused on Jennifer. One of the reasons for this suspicion was that Joel was heavily over-insured and Jennifer was his beneficiary. Although Joel earned only about $50,000 per year, his life was insured for over one million dollars. As police discovered evidence that Jennifer was romantically involved with Matthew Fletcher, suspicion focused on him as well. Half of Joel's life insurance was acquired after Jennifer's affair with Matthew began, and that insurance was written by Matthew.


Jennifer was taken to the police station and interviewed by Detective Jesse Castillo, who taped part of the interview. Jennifer told Castillo that about 7:00 p.m., she made some telephone calls while Jacob was in the bathroom. When she finished her calls, she went into the bathroom, closed the door and bathed Jacob. She heard a gunshot, then heard Joel say "I'm a cop," followed by a second gunshot. She then heard a Black male voice say "why did you do that?" followed by another gunshot. She grabbed Jacob out of the bathtub and by pre-arranged security plan devised by Joel, took Jacob to the master bathroom, locked the door and hid in the shower. She heard loud crashing noises all over the house. She did not hear Bates calling for her. She did hear the police calling.


Jennifer was also interviewed by Detective Ronald Ito. This time, she stated that while she was bathing Jacob, she heard a voice, probably Joel's, say "I'm a cop." She then heard a gunshot, then heard a Black male voice scream "Why's you do dat for?" then another gunshot. She and Jacob went to the master bathroom as part of a pre-arranged security plan. Jennifer told Detective Ito that Joel was jealous of her male friends, including Matthew. She acknowledged that Joel had heard a voicemail message that Matthew had left for her in which he said, "I love you, I love you, I love you."


Jennifer was also interviewed by Detective Russell Poole. She told him that she asked Jacob to get undressed while the water was running for his bath. She went downstairs to get some sheets out of the dryer, observed that Joel was working at the computer downstairs, returned upstairs, and went into the bathroom with Jacob. She then gave Detective Poole the same description of the shooting that she had given to Detective Ito. She added that while hiding in the bathroom, she heard footsteps from two different individuals and banging noises outside the bedroom. She stayed in the bathroom until police officers knocked on the door.


On March 20, Jennifer acknowledged to Detective McCartin that she was familiar with guns, including shotguns. Jennifer was aware that there were weapons in her residence.


Matthew was also familiar with shotguns, and at one point owned two of them. He used to shoot trap, skeet and sporting clays with .410 shotguns, among other weapons.


On March 19, Detective Ito interviewed Matthew. He denied any romantic relationship with Jennifer. He acknowledged that he had left the "I love you" message for Jennifer and that Joel was aware it. Matthew claimed, however, that he explained to Joel that he was just joking around with Jennifer because she had complained that nobody ever told her that they loved her. Matthew denied that Joel was upset about the message.


Matthew told police that on the night of the murder, he met Lani Keiser Pacherie at her home in the San Fernando Valley about 7:00 p.m. Between 8:30 and 9:00 p.m., he tried unsuccessfully to locate his sister at a hospital in the valley. About 10:00 p.m., he met a prospective client at a restaurant called Bo's and Ros. About 10:30 p.m., he drove Ros to a house in Carson where they discussed insurance. Matthew's alibi was partially verified, but did not cover his whereabouts at the likely time of the murder.


On March 28, Matthew showed retired police officer William Wigodsky a flat police badge that he said he had found on the floor by Joel's computer. Wigodsky worked with Matthew. A few days later, Wigodsky told Matthew that the police department wanted the badge back. Matthew gave it back a few days after that.


Police also interviewed Bates several times. During an interview on March 20, Bates told police that she went upstairs when she got home because "I didn't want her [Jennifer] to let him come down with the baby [Jacob] and see his daddy." When this matter eventually went to trial, Bates testified the word "him" referred to Jacob, making her statement "I didn't want her to let him [Jacob] come down with the baby [Jacob] and see his daddy."


Later, in a deposition in a related insurance matter, Bates testified that after finding Joel, she "ran upstairs so Jennifer wouldn't come down." The questioning attorney then asked: "So Jennifer wouldn't come down?" Bates replied: "Yeah, Jennifer and the baby, to hear the shot." At trial, Bates claimed that when she said "to hear the shot," she meant "to see the body."


At trial, Bates gave the following account of the murder: On March 18, Jennifer told Bates that she, Joel and Jacob were going to have a "family night" that night. This was the first planned family night since Bates had moved in. About 3:30 p.m., Bates left the house to see a movie. She locked the sliding glass doors before leaving. Bates went to a 4:05 p.m. movie, then went shopping. She next went to a Koo Koo Roo restaurant and ordered food at 8:52 p.m. She did not like the food and left the restaurant between 9:00 and 9:15 p.m. She arrived home about 9:15 p.m.


Jennifer's car was in the driveway and the front door was locked. Bates let herself in and went to the family room to say hello. There, she saw Joel. She saw blood and believed that Joel had shot himself. She attempted to take his pulse. His body felt warm. Bates went upstairs to look for Jennifer and Jacob. She believed that she called out for Jennifer but was not sure. Bates went into the master bedroom, but not the master bathroom.


Having failed to find Jennifer and Jacob, Bates went back downstairs. There she called 911. She was not sure why she twice told the 911 operator that Joel had been killed. When she heard a helicopter overhead, she walked over and unlocked the sliding glass doors.


As soon as funeral arrangements began to be made, a rift developed between the Shanbrom family and Jennifer. The Shanbroms perceived Matthew as taking control of the funeral arrangements. There were soon disagreements over the funeral and burial. The funeral itself was acrimonious. Jennifer did not sit with the Shanbroms at the funeral and did not attend their family gathering after the funeral.


Detective Kraus followed Matthew, Jennifer, Bates and Jacob after the funeral.[4] They went to a Marriott Hotel. Jennifer and Matthew went to room 1204. About 8:00 p.m., a hotel employee delivered a bottle of champagne and some food. About 15 minutes later a man in his fifties knocked on the door and entered. Detective Kraus heard laughter coming from the room.


On March 24, and again on March 26, Bates contacted police to tell them that the padlock on the back gate was missing. Bates stated that only she and Jennifer had keys to the lock.


On March 26, Matthew called Detective McCartin and told him that he had found the padlock to the back gate underneath some wooden boards just below the gate. Jennifer confirmed that the lock was in fact the lock which had been on the gate on March 15, the last time she locked the gate. A key in her possession worked for the lock. A locksmith examined the lock and determined that it had not been tampered with.


Matthew soon began trying to collect Joel's insurance proceeds on Jennifer's behalf. On October 1, 1998, Jennifer received $314,997.31 as the beneficiary of Joel's police insurance through the LAUSD. At the time of the trial of this matter, the other two insurance companies had not paid Jennifer's claims. Lawsuits were pending.


Within a few days of receiving the LAUSD proceeds, Jennifer transferred $140,000 into a joint account which she had opened with Matthew.


In the months following Joel's murder, Jennifer gave varying accounts of her activities and observations on the night of the murder. In most versions, Jennifer stated that she stayed in the bathroom until Bates came home and found her in the bathroom.


In February 1999, Jennifer and Matthew were married. At the time, Matthew's 1984 marriage to Deborah Fletcher was still valid. A default judgment of dissolution of Matthew's marriage to Deborah was entered on October 10, 2001.


In an effort to solve the crime, police contacted the Federal Bureau of Investigation. Mark Safarik, a special agent with the Federal Bureau of Investigation assigned to the Behavioral Analysis Unit, performed an assessment and analysis of the crime scene in the instant case. He explained that violent crime scenes could be "very complex" and he examined them in a two-part process: the analytical component and the interpretive component. The analytical component looked at a violent crime scene from a behavioral perspective, including facts about the offender (i.e., motive and risk level), the victim (i.e., why was this person a victim), and the method of killing (i.e., the type of weapon). The interpretive component was a "critical" phase where the examiner applied what he had learned from other crime scenes, as well as research data collected by others. Safarik did not believe that his analysis constituted criminal profiling.


After visiting the crime scene and conducting an examination of the material applicable to the instant case, Safarik concluded that the crime scene at the Shanbrom residence was "staged." "Staging" refers to a behavior at a crime scene in which the offender intentionally tries to redirect law enforcement away from the offender. The offender perceives that the undisturbed crime scene will draw attention to them. The offender therefore tries to alter the crime scene so that a different motive appears.


Safarik offered the following reasons in support of his conclusion that the crime scene was "staged" in the instant case:


(1) "[T]here was an excessive amount of searching" and excessive ransacking which was disorganized and "inconsistent with a true search for valuables" since valuables were "clearly" visible but yet nothing was taken from the residence. The excessive ransacking and the lack of any items being removed from the residence was "totally disproportionate to the level of violence at [the crime] scene" (i.e., a murder caused by shotgun blasts to the head). This indicates that the crime scene was staged to mislead the investigators to believe the motive for the crime was a robbery or a burglary/robbery for financial gain, when, "in fact, it was a personal cause homicide."


(2) The fact the residence appeared to be occupied suggests that there would have been a search of the residence for other individuals who might have called the police after Joel was murdered with a loud weapon. There was not such a search in this case.


(3) A child's bedroom would not normally be ransacked in a search for valuables.


(4) Joel was a "security conscious" school police officer in that he "always would lock the doors and windows even when he was inside the residence." There was no evidence of a forced entry and yet according to Jennifer, two individuals, at least one who was armed, gained entrance into the residence.


(5) Jennifer's statement that Joel identified himself as a police officer was inconsistent with what friends and co-workers indicated Joel would have done in that circumstance.[5] Also, such a statement by Joel was inconsistent with his position of remaining on the couch.


(6) Jennifer changed her statement as to when she heard Joel tell the intruder that he was a police officer. Initially, she stated she heard Joel identify himself as a police officer after the first shot. However, after the medical examiner concluded that the first shot would have incapacitated Joel, Jennifer changed her story and placed the first shot after the statement by Joel.


(7) The statement that Jacob was taking a bath with his toys in the bathtub at the time of the shooting was inconsistent with the fact the toys were found outside the bathtub, and the small amount of clear water in the bathtub. It was also inconsistent with Bates's description of Jennifer's usual method of bathing Jacob.


(8) While moving Jacob from one bedroom to the master bedroom, Jennifer failed to pick up the portable phone and call 911. She also failed to pick up and/or use the Walther .380 weapon. Such failures were inconsistent with her expressed level of fear.


(9) Jennifer heard the intruders come up the stairs and ransack the house, yet she did not hear her mother (Bates) come upstairs calling out for her and Jacob.


(10) A person stating, "Why did you do that" to another person implies that the shooting was not foreseen. But, there was no search of the residence for other occupants even though the risk level to the offenders had been significantly elevated. Instead, they remained in the house and ransacked rooms. And, even though the master bedroom was ransacked, no one checked the master bathroom door even though it was the only closed door in the house.


(11) The circumstances surrounding the lock to the gate in the backyard were problematic. The gate was unlocked, but the residents of the house said they did not unlock the gate. The lock was found undamaged. Also, if someone had entered the residence from the railroad tracks in the rear, it would have been easier to hop over the five-foot retaining wall. And, "There [was] no logical explanation for why the lock was removed from the fence and why on the initial search it was not located."


(12) The gun used in the murder was unusual. Of the over 13,000 homicides in Los Angeles between 1984 and 2000, only three were committed with a .410 shotgun, and none of those homicides involved a home invasion robbery. Because three shots were fired from the shotgun, the shooter at some point opened the weapon, removed the shells, and reloaded to fire again. The removal of the shells from the scene in a home-invasion robbery was unusual and suggested the killers thought they might be linked to the scene.


(13) The fact the sliding glass door was closed was inconsistent with someone fleeing the crime scene.


Agent Safarik reached the following conclusion: "The offender brought the weapon with the intention to shoot [Joel] Shanbrom. He shot Shanbrom immediately upon encountering him. As previously discussed, available information indicates that Shanbrom was asleep on the couch. [] The suddenness and ferocity of the attack, as observed by the fact that [Joel] was most likely asleep, as well as the number and location of the shots, indicates that the offender came to this residence for the express purpose of killing him. The nature and style of this murder was a personal one and [Joel] was specifically targeted."


In early 2002, a Grand Jury was convened. Bates testified pursuant to a grant of immunity. She took notes after each session. Those notes were later found in Matthew's house. In March 2002, following her Grand Jury testimony, Bates left Los Angeles for Oregon because "the heat is on and they are afraid she talks too much."


In February 2002, Jennifer and Matthew were arrested. Joel's police business card was found in Matthew's wallet behind his driver's license. More of these cards were found in the glove compartment of Matthew's car. Handcuffs engraved with Joel's name were also found in the glove compartment.


Matthew was placed in a cell with electronic monitoring, and his conversations were tape recorded. In one conversation, a fellow inmate asked Matthew: "Why you in?" Matthew replied: "I'm trying to find out." The inmate persisted, asking: "What the fuck you do?" Matthew replied: "A bad thing." The inmate began guessing possible crimes. After a few other crimes, the inmate asked: "Murder?" Matthew replied "Yeah." The inmate asked: "You try and kill your wife?" Matthew replied: "Cop." The inmate said: "Man, you killed a cop?" Matthew then said: "I didn't do it." The inmate said: "What." Matthew added: "I'm innocent." Laughter is heard on the audiotape of the conversation. The inmate says: "That's what we all say." More laughter is heard.


Matthew and Jennifer each testified on their own behalf and denied any involvement in Joel's murder. Matthew presented an alibi defense and Jennifer maintained she was upstairs with Jacob at the time of the murder.


Matthew denied having a romantic relationship with Jennifer before Joel died. He claimed the romantic relationship started in June 1998. Matthew testified he and Jennifer did not discuss marriage until September 1998.


Matthew explained that in the jailhouse conversation which was tape-recorded "I didn't feel that I was admitting that I had killed Joel. They asked me what I was in for, why was I arrested. That doesn't mean that I confessed to - I killed Joel. So that's my comment on that." On cross- examination, Matthew maintained the tape recording was "an incomplete conversation" and "it doesn't matter what's on the tape" and "you can't hear everything on the tape that was being said." Matthew claimed he was not asked, "What the fuck you do?" during the conversation. Rather, Matthew maintained he was asked, "What did they think you do" and that was when he responded, "A bad thing." Matthew felt that he could not adequately explain the tape recording "because you can't hear everything that's being said there." According to Matthew, "I'm not saying anything was deleted [from the tape recording]. I'm saying that the tape is so inaudible, you can pick things out of it, but you don't have everything in there."


Matthew testified that on the evening of Joel's murder he left Gleit's condominium at 6:30 p.m. and arrived at the Pacherie residence at approximately 7:15 p.m. Mr. Pacherie was not at home so Matthew explained the insurance documents to his wife Lani and left the Pacherie residence at approximately 8:00 p.m. He then went to St. Joseph's Hospital to give his sister Deborah insurance documents. Deborah was not at the hospital so he called her from the pay telephone in the waiting area and left her a message. Matthew then went to Rosby Teopaco's restaurant at 8:45 p.m. He left the restaurant with Teopaco at approximately 9:30 p.m. and together they proceeded to Percy David's house in Carson where they arrived shortly after 10:00 p.m. They left the David residence about 11:15 p.m. Matthew dropped Teopaco off at home shortly before midnight and arrived home himself shortly after midnight.


Alain Pacherie testified at trial that he was supposed to meet with Matthew at 7:00 p.m., but when Matthew had not shown up by 7:20 p.m., he left. When he returned home about two hours later, his wife Lani told him that Matthew had dropped off some papers. Lani (Pacherie) Keiser testified that Matthew was not at her house on March 18.


Matthew's sister confirmed that she spent part of March 18 at a hospital visiting a friend. About 8:00 p.m., while she was at dinner, she received a call from Matthew which seemed to come from the hospital.


Rosby Teopaco confirmed that Matthew came to his restaurant, but not until about 10:00 or 10:30 p.m. on March 18, and that they drove to Teopaco's sister's house in Carson, where they spent an hour discussing insurance. Matthew then drove Teopaco home. Teopaco's brother-in-law placed Matthew's and Teopaco's arrival time about 1:30 a.m. His sister placed it between 1:15 and 1:30 a.m.


Jennifer also denied she and Matthew were romantically involved either before or at the time of Joel's death. Following Joel's death, however, Jennifer and Matthew commenced a romantic relationship and ultimately married. They had two children together and Matthew adopted Jacob and changed his name to "Jacob Fletcher." Jennifer acknowledged transferring approximately $140,000 of the insurance proceeds she had received following Joel's death into a joint account she held with Matthew.


On the night of the murder, Joel and Jennifer planned to have "family night," which involved them and Jacob spending time together. Jennifer's mother, Bates, planned to go to the movies. Jennifer picked Joel up from work about 4:00 p.m. They then picked Jacob up from preschool. They picked up ice cream from 31 Flavors and returned home about 5:30 p.m. Bates was not there. They ordered a pizza for dinner. They put on a video for Jacob to watch. Joel opened the sliding glass door because he was hot. They then ate pizza and ice cream. Jacob eventually became bored with his video, so Joel went to the office to make some telephone calls and work on the computer.


At approximately 8:00 p.m., Jennifer took Jacob upstairs and prepared to give him a bath. She turned on the heater in Jacob's room so that it would be warm after the bath. She also turned on his night light and laid out his pajamas, and then closed the bedroom door. While Jacob was getting undressed in his room, Jennifer made a telephone call and then went downstairs to take care of some laundry. Jennifer "peeked" around the corner and Joel was still working in the office. She then went back upstairs and yelled down to Joel that he could watch whatever he wanted to on television, as she would be giving Jacob his bath.


Jacob did not like much water in the tub, so Jennifer only filled it up a few inches. She let Jacob play in the tub for a while before she washed him. When Jacob finished playing with his toys, Jennifer removed them from the tub so that she could bathe Jacob without him being distracted by the toys. She would take all the toys out and "just toss them on the floor."


Jennifer then heard what she thought was Joel's voice or perhaps a sound from the television loudly state, "I'm a cop" or "I'm a police officer." After that, she "heard a pop, pop sound." Jennifer again thought the sound came from the television. Then she heard a man with a deep voice shout, "Why'd you do dat?" Jennifer then heard another pop and knew something was wrong. Jennifer grabbed Jacob from the tub. Jennifer smelled gunpowder when she opened the door. She knew she was in danger and wanted to protect Jacob. Jennifer quietly walked into the master bathroom and locked the door. She took a towel and tried to conceal Jacob, and then they hid in the shower. She cried and told Jacob to be quiet because there were "bad people" in the house. She could hear crashing in the house. When it stopped, Jennifer heard a door shut and then heard nothing. After a while, Jennifer heard somebody running up the stairs and she got scared. Jennifer later learned that it was her mother who ran up and then down the stairs.


Eventually, a helicopter was flying over the house, shining its light, and it sounded like several people ran into the house. Police ordered her to open the door, which she eventually did after an officer placed his badge under the door to prove it was, in fact, the police. Officers then escorted Jennifer downstairs and out of the house. Because Jacob was naked, an officer went into his room to get him some clothes.


Appellants offered the testimony of Brent Turvey, a forensic consultant, who examined and criticized Safarik's report and his conclusion that the crime scene was staged. They also offered the testimony of Thomas Streed, a forensic behavioral scientist, who examined the evidence in the case and concluded that the crime scene had not been staged.


Lawrence Baggett, a forensics ballistics and explosives expert, opined that Joel was not laying back when shot. He also opined that the wound to the cheek was inflicted first, then the wound to the back of the head, then the wound to the eye.


Discussion


1. Denial of "advisory" counsel - Matthew


Matthew contends that the trial court abused its discretion when it refused to allow retained counsel to act as "advisory" counsel, but instead deemed her to be "stand-by" counsel. He further contends that the court's ruling interfered with his relationship with his retained counsel, Brown, in violation of his constitutional right to assistance of counsel and due process of law.


We see no violation of Matthew's constitutional right to representation. "A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 20, emphasis added.)


Here, appellant chose to exercise his right to represent himself. He therefore had no constitutional right to counsel, and was not in fact represented by counsel. There was no relationship for the trial court to interfere with.


Appellant contends that he has a constitutional right to employ counsel of his choice. In support of this contention, appellant relies on Chandler v. Fretag (1954) 348 U.S. 3; Wheat v. United States (1988) 486 U.S. 153; People v. Crovedi (1966) 65 Cal.2d 199; and People v. Jones (2004) 33 Cal.4th 234. His reliance is misplaced. All of those cases involve a defendant's right to be represented by the attorney of his choice when he is paying for that attorney. Matthew did not seek to be represented by Brown.[6] Nothing in the above cases suggests that a self-represented defendant who is able to pay for an attorney has a right to have that attorney act in any capacity the defendant chooses. At most, the reasoning of those cases suggest that a self-represented defendant has a right to the attorney of his choice in the capacity the trial court has deemed appropriate. Here, that capacity was stand-by counsel. Matthew had Brown in that capacity.


We also see no abuse of discretion in the trial court's denial of Matthew's request that Brown be allowed to act as "advisory" counsel. Matthew's request made it clear that he sought to have Brown participate in the trial. He explained that he wanted "advisory" counsel for "the day to day things of court to have someone there that I can talk to and work together to get those things prepared." He also stated: "I guess what I'm asking is to have someone that I can be in contact through the course of the trial. If she is sitting out in the audience, that hampers me being able to defend myself." Thus, regardless of the label Matthew placed on Brown, he was seeking to have her be a participant in the trial, and in effect a co-counsel.


On appeal, Matthew continues to insist that he wanted "advisory" counsel. His contentions on appeal again show that he was seeking to have Brown participate in the trial. For example, he claims that if Brown had been sitting next to him, she could have "advised" him to state objections made by Jennifer's attorney as his own as well as "advising" him regarding objections in other areas of examination. It is difficult to imagine how Brown could have "advised" him in this manner during the examination of a witness. She could certainly have told him when to object and on what grounds, but that is not advice, that is telling him what to say. (See People v. Bradford (1997) 15 Cal.4th 1229, 1369 [counsel acts in a "primary role" not an advisory one when he makes objections or instructs the defendant what to say next].)


"Allowing a represented defendant to share legal functions with the attorney is generally undesirable." (People v. Frierson (1991) 53 Cal.3d 730, 741.) "Undesirable tactical conflicts, trial delays, and confusion often arise when a defendant who has chosen professional representation shares legal functions with his attorney. (See, e.g., United States v. Mosely (6th Cir. 1987) 810 F.2d 93, 98; United States v. Kimmel (9th Cir. 1982) 672 F.2d 720, 721; State v. Gethers (1985) 197 Conn. 369, fn. 25 [497 A.2d 408, 422]; Moore v. State (1978) 83 Wis.2d 285 [265 N.W.2d 540, 546].)" (People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) Thus, "[t]he court's discretion to authorize such an arrangement is therefore 'sharply limited,' and may be exercised only upon a 'substantial' showing that it will promote justice and judicial efficiency in the particular case." (People v. Frierson,supra, 53 Cal.3d at p. 741.)


Matthew has not made such a substantial showing.


2. Sufficiency of the evidence Matthew


Matthew contends that there is insufficient evidence to support his conviction for murder.


In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks, italics, and citations omitted.)


"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)


"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)


Matthew made statements which could reasonably be understood as admitting that he killed Joel. While Matthew was in jail, a fellow inmate asked him: "Why you in?" Matthew replied: "I'm trying to find out." The inmate persisted, asking: "What the fuck you do?" Matthew replied: "A bad thing." The inmate began guessing possible crimes. After a few other crimes, the inmate asked: "Murder?" Matthew replied: "Yeah." The inmate asked: "You try and kill your wife?" Matthew replied: "Cop." The inmate said: "Man, you killed a cop?" Matthew then said: "I didn't do it." The inmate said: "What." Matthew added: "I'm innocent." Laughter is heard on the audiotape of the conversation. The inmate says: "That's what we all say." More laughter is heard.


Matthew was evasive when asked what he was charged with, then when asked what he did, replied in the affirmative to murder. When asked if he tried to kill his wife, he did not deny that he had tried to kill anyone. He corrected the identity of the victim from wife to cop. The jury could reasonably have understood these statements as admitting guilt. It is true that shortly after making these incriminating statements, Matthew denied the killing, but laughter is heard on the tape of the conversation. Thus, the jury could reasonably have disregarded the denial as not in earnest.


Statements by Diana Bates indicated that a male was in the house when she arrived and found Joel's body. In a police interview, Bates said that she went upstairs to see Jennifer after finding Joel's body: "I didn't want her to let him come down with the baby and see his daddy." (Italics added.) The "him" could not logically have been Joel or Jacob. In a deposition in the related insurance claim case, Bates said that she went upstairs after finding Joel so that Jennifer would not come down. The attorney asked: "So Jennifer wouldn't come down?" Bates replied: "Yeah, Jennifer and the baby, to hear the shot." This latter statement creates an inference that the male was the shooter, or one of the shooters. Matthew correctly points out that Bates attempted to explain away these statements by claiming that the "him" in the first statement referred to baby Jacob and that when she said "hear the shot" she meant "see the body." The jury was not required to accept these explanations.


Other evidence supports an inference that the male in the house was Matthew. Matthew's alibi at trial differed from the one he provided police immediately after the crime, and was contradicted by the people with whom he supposedly spent the night. At trial, Matthew claimed that on March 18, the night of Joel's murder, he was at the Pacherie residence explaining insurance documents to Lani Pacherie from about 7:15 p.m. to 8:00 p.m. and at Teopaco's restaurant from 8:45 p.m. to 9:30 p.m. Lani (Pacherie) Keiser testified that Matthew was not at her house on March 18. Teopaco testified that Matthew did not arrive at his restaurant until 10:00 or 10:30 p.m. that night.


A few days after the murder, Matthew showed Wigodsky Joel's badge, and claimed to have found it near Joel's computer. Jennifer told police that Joel's badge was in the house the evening of the murder. Police had searched the house for evidence after the murder and had specifically looked for Joel's badge. They did not find it.


As detailed in the facts section of this opinion, Matthew had two strong and intertwined motives to kill Joel. Matthew was romantically involved with Jennifer and Joel's death would provide Jennifer with over one million dollars in life insurance proceeds. A few days before the murder, Joel confronted Matthew about the affair. Killing Joel would provide Matthew and Jennifer with money and permit the two to pursue their romantic relationship openly.


Joel was killed with a shotgun, an unusual weapon for a murder. Matthew was familiar with shotguns. There was no sign of forced entry into the house, suggesting that the killer was known to the house's occupants. Matthew's "discovery" of the padlock in the Shanbrom's backyard, eight days after the yard was subject to an extensive search, was suspicious.


3. Special circumstances Matthew


Matthew contends that there is insufficient evidence to support the lying-in-wait and financial gain special circumstances.


We review the sufficiency of the evidence in accord with the rules set forth in section 2, supra.


a. Lying-in-wait


"The lying-in-wait special circumstance requires proof of 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period 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.' [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 119.) No particular period of waiting time is required, as long as it is sufficient to demonstrate that defendant had a state of mind equivalent to premeditation or deliberation. (People v. Poindexter (2006) 144 Cal.App.4th 572, 585.)


Here, Matthew found the lock to the back gate under suspicious circumstances. There was no sign of forced entry into the house, and the only unlocked entrance to the house was the sliding glass door behind the couch. The jury could reasonably have inferred that Matthew unlocked the back gate and surreptiously entered the Shanbroms' backyard through the back gate, entered the house through the sliding door and shot Joel from behind while he was lying on the couch. These actions show concealment, a period of watching sufficient to show premeditation, and a surprise attack. (See People v. Hardy (1992) 2 Cal.4th 86, 163-164 [sufficient evidence to support lying-in-wait finding where defendants drove to victims' house in early morning hours, parked on side street to avoid drawing attention to their activities, entered home under cover of darkness at time that victims could reasonably be expected to be asleep and killed victims in their beds; no need to show that the defendants actually watched victims and waited a moment before shooting them]; see also People v. Moon (2005) 37 Cal.4th 1, 22-23.)


There was also substantial evidence to support the special circumstance if the jury believed that Matthew aided and abetted Jennifer. There is ample evidence to show concealment, watching and waiting and a surprise attack by Jennifer. She arranged a "family night" at home, concealing her purpose of getting Joel alone for the killing. While the family was alone, Jennifer went upstairs, but came downstairs at least once to check on Joel. This was a period of watching and waiting. Once Joel was lying on the couch watching television, the surprise attack from behind occurred.


A special circumstance finding for an accomplice who was not the actual killer requires only that the prosecution prove that the accomplice had an actual intent to kill the victim. ( 190.2, subd. (c); People v. Cleveland (2004) 32 Cal.4th 704, 729.) As we discuss in section 2, supra, Matthew had two strong reasons to wish Joel dead. Given the strong evidence, planning and preparation by Jennifer, it is reasonable to infer that if Matthew was involved at all, he knew the nature of Jennifer's plan and shared her intent to kill.


b. Financial gain


The financial gain special circumstance requires proof that "the victim's death is the consideration for, or an essential prerequisite to, the financial gain sought by the defendant." (People v. Bigelow (1984) 37 Cal.3d 731, 751.) "'[T]he relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain [citation] as, for example, in the killing of a victim in a murder for hire [citation], or in an attempt to secure the proceeds of a life insurance policy covering the victim [citation] or to avoid a debt owing to the victim [citation].'" (People v. Mickey (1991) 54 Cal.3d 612, 678, italics omitted.)


Here, Joel had a very large amount of life insurance, half of it acquired after Jennifer met Matthew. When Joel stopped paying premiums for one of the earlier policies, Jennifer went to considerable efforts to maintain the life insurance. Once Joel was dead, Matthew had total authority from Jennifer to attempt to recover the insurance proceeds. Jennifer eventually shared at least half of the insurance proceeds with Matthew. It was more than reasonable for the jury to infer that the two worked together to kill Joel for the insurance proceeds.


4. Conspiracy Matthew


Matthew was charged with one count of conspiracy, with a target offense of "murder for the purpose of defrauding insurance companies" and other similar agencies. He contends that the jury instructions given by the trial court on this charge were confusing and could have resulted in the jury believing that it was deciding two separate conspiracies: (1) conspiracy to commit murder and (2) conspiracy to commit insurance fraud. He also contends that the crime of conspiracy to commit murder cannot stand because there are no overt acts which took place before the murder. We do not agree.


As respondent correctly points out, there is no crime of murder for purposes of insurance fraud. The allegations of the complaint show that the object of the conspiracy was two crimes: murder in violation of Penal Code section 187 and insurance fraud in violation of Penal Code section 550.[7] Thus, the trial court's comments and instructions concerning conspiracy which referred to the crimes of "murder and/or insurance fraud" and to "murder or insurance fraud" were consistent with the allegations of the complaint. The comments, instructions and verdict forms made it clear that only one count of conspiracy was charged against each defendant, but that two crimes were involved.


The special verdict form made it clear that the jury had to find whether each crime occurred. The form read: "We further find that defendant, MATTHEW FLETCHER, conspired to commit the crime or crimes opposite the designation of which there has been placed an "X". [] _ 1. MURDER, in violation of Penal Code Section 187(a) [] _ 2. INSURANCE FRAUD, in violation of Penal Code section 550." Certainly, it would have been possible for the jury to find true only one of the objects of the conspiracy. That is not what occurred, however. The jury placed an X on both lines on the form, showing that it found Matthew guilty of both conspiracy to commit murder and conspiracy to commit insurance fraud.


Matthew further contends that none of the overt acts found true by the jury occurred before the murder, as is required. Matthew is mistaken.


"'[A]n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.' [Citations.]" (People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) "The overt act need not be criminal in itself [citation], and may be merely a part of preliminary arrangements for commission of the ultimate crime [citations]." (People v. Buono (1961) 191 Cal.App.2d 203, 223.)


As Matthew acknowledges, the jury found true in overt act VII that Jennifer, Matthew and Bates "counseled together to create an alibi for each person, and to 'stage' a crime scene on March 18, 1998 at 17298 Raymer Street, Northridge."


Matthew contends that the prosecutor consistently argued that these events occurred after Joel was killed. We will assume for the sake of argument that appellant is correct. The jury was not bound by the prosecutor's argument. We see ample evidence from which a jury could have inferred that the counseling occurred before the murder. Bates's absence from the house the evening of murder began before the murder and if planned, could only have been planned before the murder. Given that Bates left the house because Jennifer wanted to have a firs

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