P. v. Zupan
Filed 8/22/08 P. v. Zupan CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Nevada)
----
THE PEOPLE, Plaintiff and Respondent, v. FRANK ZUPAN, Defendant and Appellant. | C055579 Super.Ct. No. SF06064 |
Defendant Frank Zupan murdered his wife Shauneen and tried to make it look like she had been shot in a road-rage incident. A jury convicted him of first degree murder and sustained special circumstances of financial gain and lying in wait, and found that he personally discharged a firearm. (Pen. Code, 187, 190.2, subds. (a)(1) & (a)(15), 12022.53, subd. (a)(1)(d).) The trial court sent him to prison for life without parole and he timely filed this appeal.
On appeal defendant argues that absent certain purported errors the jury could or should have rejected the claims that he laid in wait for Shauneen, that he killed her for financial gain and that he personally discharged a firearm. We reject all of his claims and affirm the judgment.
BACKGROUND
Defendant had a motive to kill Shauneen. He had turned his affections to another woman. Shauneen knew that he had resumed carrying on with other women although he promised not to; she was planning to divorce him, which would hurt him financially. Also, Shauneen planned to sell a separate property house she owned and give the proceeds to her adult sons whom defendant thought were undeserving. He devised a plan to shoot her on the evening of November 15, 2005, and make it look like she had been shot by another driver.
Defendant flirted by e-mail with several women. One, R. D., met him in September 2005 and he proposed a sexual relationship; Shauneen angrily called R. D., showing she knew of defendants activities.
J. M. testified she was only a friend of defendants but viewing the evidence in favor of the verdict, it can be inferred that she and defendant were lovers. They met on the Internet and went camping together many times. Defendant told her he was not married, but she said she knew he was. Friends of hers testified to the effect that J. M. thought defendant was single until news of Shauneens death came out, and J. M. was upset to learn he was married. J. M. testified defendant took a .22 caliber pistol with him while on a camping trip.
Defendants relationship with J. M. was further established by the testimony of a peace officer, who stated that when J. M. testified at the preliminary hearing, defendant drew an ink ring on his left ring finger with J on it, and that defendant destroyed the image by licking it before it could be photographed. Also, defendant used his sons cell phones to call J. M., presumably to hide the calls.
Three weeks before the murder, Shauneen asked Jordan Owens, a computer technician at her workplace, to help her get access to a computer she had found in her barn and help her locate a woman on the Internet (presumably, R. D.).
Sharon Anderson testified that Shauneen asked her for help getting a divorce because she had found account statements showing defendant was hiding money. Shauneen told Anderson that in the past defendant had flirted with women on the Internet and after counseling promised not to have a computer; however, Shauneen had learned that defendant again had a computer.
Robert Caldwell, who had worked with Shauneen for six years, testified she told him she wanted to use the proceeds of her separate property house to benefit her sons, but defendant was adamantly against that. Tim Dierks testified defendant was pretty upset, angrier than Dierks had ever seen, about Shauneens plan to give her worthless sons the sale proceeds. X., a neighbor, also testified that defendant was upset about Shauneens plan, becasue he viewed her house as their nest egg, the retirement fund. Defendant told X. he did not want to sell this house for her lazy ass sons; This is bullshit and Ill be [damned] if Im going to let that happen. Defendant told one of his sons that her plan was a deal breaker.
On November 9, 2005, Shauneen made an appointment to see a divorce lawyer later that month.
Several witnesses testified Shauneen wore heavier-than-usual makeup the day she was killed or the day before that, in a failed effort to hide a bruise or scratch on her face. Several witnesses, including one of defendants sons, testified defendant insisted on driving when he was with his wife.
A fraud expert testified the couple had assets of over $2,850,000.A lawyer testified that, upon divorce, defendant would have received about $1,000,000, but if Shauneen died intestate, he would have received about $2,500,000. Shauneens sons testified that she had had a will, but it was never found.
Defendant shot his wife in their van on McCourtney Road, at the Patterson Valley Road turnout, then steered the van into some rocks near Indian Springs Road.
A deputy sheriff saw Shauneens van parked at Patterson Valley Road earlier that night, with the windows intact. Later, the van was seen up against a boulder by Indian Springs Road and McCourtney Road. Shauneen was in the drivers seat and had been shot through the vans driver side window.
CHP Officer Steven Ingram saw vehicle glass on the edge of McCourtney Road near Patterson Valley Road before he arrived at Indian Springs Road, indicating the bullets were fired into the van at that location. He testified defendant was not frisked. Similarly, CHP Officer Roderick Rocha testified defendant was never detained or frisked.
Shauneen was air-lifted to a Roseville hospital. Larry Daniels was to drive defendant to the hospital, but defendant wanted to go home first. He asked Daniels to stop the car near Patterson Valley Road, claiming to be sick, but defendants claim seemed false to Daniels. Defendant was out of Danielss sight for four to five minutes. Defendant later told Daniels he would drive himself to the hospital: Daniels dropped defendant at defendants work shop where he got into a truck and drove to his house.
A search on either side of the road between the shooting location and the spot where the van was found turned up green latex gloves matching a box of gloves found in defendants barn; the gloves found near the shooting had gunshot residue and Shauneens blood on the outside, and one had defendants DNA on the inside. The defense attempted to cast doubt on the accuracy of the DNA evidence, but was only able to show that errors were possible.
Shauneen died shortly after midnight on November 16, 2005. She had two .22 caliber gunshot wounds within two inches of each other on the left side of her head. She also had bullet wounds on her right hand, possibly caused by her assuming a defensive position.
Defendants sons testified defendant admitted he had a computer hidden in the barn that the police had not found. One son stole two .22 caliber pistols from defendant years ago, but gave them back. In response to a newspaper article about the authorities looking for the murder weapon, defendant told this son that if he wanted to get rid of it, he could have taken it apart into several pieces and thrown it out the window into the Bear River on the way to the hospital.
The authorities found one .22 caliber pistol at defendants house but excluded it as the murder weapon.
Although defendant did not testify, before trial he had told several people, including peace officers, his story about another car. He claimed that Shauneenwas driving them home from a restaurant, he heard a noise against the window as an oncoming car passed them, then she slumped forward and he grabbed the steering wheel and maneuvered the car until it crashed.
A crime scene analyst testified that a shooter aiming from an oncoming car as described by defendant could not possibly place the shots so carefully; the shots must have been fired by a person standing outside the stationary van.
DISCUSSION
I. Lying in Wait: Substantial Evidence
The People presented theories of premeditated murder and murder by lying in wait. The People alleged financial-gain and lying-in-wait special circumstances. As to both the theory of murder by lying in wait and as to the lying-in-wait special circumstance, defendant asserts no substantial evidence supports the verdicts because there is no evidence he attacked from a position of advantage.
Defendant does not attack the sufficiency of the evidence of premeditated murder, he merely describes it as hardly overwhelming. Because he does not challenge the factual sufficiency of premeditation, we would normally conclude that even if the theory of murder by lying in wait was not factually supported, the murder verdict should be affirmed on the alternate, factually uncontested ground of premeditation, even if the special circumstance had to be reversed, because contrary to defendants view, the record does not show that the jury necessarily relied on lying in wait for the murder verdict, even though it found lying in wait as to the special circumstance. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) But in this case analyzing the evidence of the lying-in-wait special circumstance embraces a review of the evidence of murder by lying in wait.
In assessing defendants argument, we apply the familiar standard of review for claims of no substantial evidence:
[T]the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The position of advantage element of lying in wait does not refer to a killers relative advantage by choosing one method or location for the killing over another, but the
killers relative advantage over the victim. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1290-1291; People v. Arellano (2004) 125 Cal.App.4th 1088, 1094-1096.)
[T]he lying-in-wait special circumstance require[s] an intentional killing, committed under circumstances that included a physical concealment or concealment of purpose; a substantial period of watching and waiting for an opportune time to act; and, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.fn. [Citations.] The purpose of the watching and waiting element is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.fn. . . . The element of concealment is satisfied by a showing that a defendants true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim. . . . The factors of concealing murderous intent, and striking from a position of advantage and surprise, are the hallmark of a murder by lying in wait. (People v. Stevens (2007) 41 Cal.4th 182, 201-202 (Stevens); see People v. Stanley (1995) 10 Cal.4th 764, 795 [a surprise attack on an unsuspecting victim from a position of advantage].)
The jury was instructed accordingly, that in order to find lying-in-wait murder it had to find that defendant concealed his purpose, waited for an opportunity to act, and then, from a position of advantage, [defendant] intended to and did make a surprise attack[.] In order to sustain the lying-in-wait special circumstance, the jury was instructed it had to find the additional element that defendant intended to kill the person by taking the person by surprise.
Defendant argues as follows:
Luring the victim to an isolated area or attacking her while sitting behind her in the car may constitute an attack from a position of advantage. Here, however, Zupan killed Shauneen at a frequently used turnout [i.e., Patterson Valley Road] that was easily visible from a highway. He therefore obtained no advantage from isolation, especially given that he could have killed her at their ranch home without any risk of being observed at all. That is, he took her from a more-isolated to a less-isolated area. Further, he obtained no advantage by the means of attack. He had to stop the car, grab the gun and gloves, entice Shauneen to sit in the drivers seat, and come up upon her in full view, as shown by her defensive wounds. For these reasons, there was insufficient evidence that he made use of a position of advantage.
This argument, at best, is an invitation to reweigh the evidence. Though defendant could have killed his wife at their home, he had a plan to conceal his involvement by blaming a phantom driver. The evidence supports a conclusion that once they were parked by the road, he shot her by surprise. The fact that she may have perceived his plan at that moment, giving her time to place her hands over her head, does not lessen the evidence he concealed his purpose and attacked from a position of advantage. (Cf. People v. McNeal (1958) 160 Cal.App.2d 446, 451 [The fact that just before the shooting the victim discovered appellants presence does not prevent the crime from being committed by lying in wait].)
Accordingly, we reject the no substantial evidence claim.
II. Lying-in-Wait: Validity of Special Circumstance
Defendant claims that the instructions on the lying-in-wait special circumstance do not adequately narrow this class of murders, but he concedes that the California Supreme Court has rejected this claim, and thus that we are bound to reject it. We agree and will reject this claim. (Stevens, supra, 41 Cal.4th at pp. 203-205; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. Impeachment Evidence
Defendant contends the trial court should have allowed him to impeach his neighbor, prosecution witness X., with a prior misdemeanor conviction for brandishing a weapon. The trial court concluded that that crime did not evidence moral turpitude and denied the motion. Although the trial court may have been wrong as to the nature of the crime, the conviction would have been excluded in the trial courts discretion. Further, any error was harmless on this record.
According to the Peoples motion in limine, in September 1983, X. was convicted of assault and brandishing a weapon, both misdemeanors. (Pen. Code, 240, 417, subd. (a).) Due to the passage of time, court consolidation and the retirement of X.s former lawyer, little information about the case exists. There is a court record of a 1987 motion to expunge, and X. stated that the convictions had been expunged. X. has not been charged with any other crimes and had a successful career as a fireman and a paramedic and is now retired.
Defendant submitted the issue without opposition. The trial court ruled that neither simple assault nor brandishing showed moral turpitude. On appeal, defendant asserts that brandishing does show moral turpitude.
We reject the Peoples view that defendant is precluding from challenging the in limine ruling. Submitting an issue for decision does not equate to acquiescing in the ruling; further, the in limine ruling was clear and pertained to specific evidence, therefore defendant was not obliged to renew the matter when X. testified. (See People v. Morris (1991) 53 Cal.3d 152, 187-191, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
The root of defendants authority is a case holding that wielding a machete at a peace officer shows moral turpitude. (People v. Lepolo (1997) 55 Cal.App.4th 85, 89-91.) Although that case does not hold that all instances of brandishing a weapon evidence moral turpitude, for purposes of this appeal we accept defendants contention.
Although the trial court did not purport to exercise its discretion, in our view exclusion of the conviction was inevitable, that is, it would have been an abuse of discretion to admit it into evidence on this record.
As defendant noted in his motion to exclude evidence of his prior misdemeanor conviction, misdemeanor conduct generally is a less forceful indication of immoral character or dishonesty than is a felony. (People v. Wheeler (1992) 4 Cal.4th 284, 296.) Here, the misdemeanor had been expunged 10 years before trial, further weakening its probative value.
The only extant evidence that could have been submitted to the jury was the bare fact of conviction. (Evid. Code, 452.5; see People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1462 [although Wheeler held misdemeanor conviction, as opposed to underlying conduct, would be inadmissible hearsay, subsequent statutory hearsay exception abrogated that holding]; Simons, Cal. Evidence Manual (2008 ed.) 3:58, pp. 258-259.) Absent any facts about X.s particular conduct, it did not portray him as particularly dishonest or having an abiding readiness to do evil, the essence of moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 313-314 (Castro), original italics.)
The prior was old. X.s conviction was in September 1983, and the in limine motion was heard in February 2007, over 23 years later. Defendant relies on cases holding that even old convictions may be used to impeach, but that turns on whether the person has led a blameless life in the meantime. (See e.g., People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) X.s subsequent life was not merely blameless, it was praiseworthy, as he was a retired emergency services worker. (People v. Burns (1987) 189 Cal.App.3d 734, 738-739 [old conviction may be admissible where criminality continued, but 20-year-old conviction certainly meets any reasonable threshold test of remoteness].)
Allowing introduction of the prior would have entitled the People to rehabilitate the witness. (See 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, 360, p. 447.) That would have been time consuming and confusing.
The trial court retained the traditional discretion to exclude evidence that is of little probative value, time consuming and confusing. (Evid. Code, 352; People v. Wheeler, supra, 4 Cal.4th at pp. 295-297.) All of the relevant factors weigh against admission. Therefore, even if the trial court erred about the nature of brandishing, it still retained discretion to exclude the prior.
Further, X.s testimony was cumulative, because other evidence showed defendants views about his stepsons and his disapproval of Shauneens plan to give them money. Therefore it is not reasonably probable the impeachment evidence would have made any difference. (Castro, supra, 38 Cal.3d at p. 319.)
Defendant disagrees with this view, reasoning as follows:
[X.] and other witnesses testified that Zupan was angry that Shauneen was going to sell her separate property (a house in the [Bay Area]) and give the proceeds to her two sons (Zupans stepsons). [X.] was a critical, even indispensable, witness on the special circumstance of financial gain because he was the only one of these witnesses whose testimony indicated that the reason Zupan was so angry about this proposed transaction was that he felt it was robbing him of the retirement nest egg he had counted on. It is one thing to be angry that ones spouse wants to bail out a worthless or lazy ass relative (as Zupan characterized his stepsons), but something else entirely when the bailout has the effect of undermining ones own financial security.
We disagree that X.s testimony that defendant mentioned the need to protect his nest egg was qualitatively different than the other testimony about his opposition to his wifes plan to give her children some money. His disapproval of her children and of her plan to give them money was emphatic. X.s testimony was cumulative with the other evidence.
Defendant also states that there was evidence he was helping facilitate Shauneens sale of her separate property rental house. As he characterizes the record on appeal, defendant helped Shauneen make it look like the house was her residence so that when she sold it she could avoid the taxes that would be due on the sale of a rental house. That he wanted to minimize the money going to tax authorities does not detract one iota from the evidence he did not want any of the money to go to Shauneens children.
In short, defendants financial motive did not turn on the fact that the jury did not learn about X.s conviction. Any error was harmless. (Castro, supra, 38 Cal.3d at p. 319.)
IV. Pitchess Motion
Defendant moved for discovery of peace officer personnel records, pursuant to Pitchess v. SuperiorCourt (1974) 11 Cal.3d 531 (Pitchess) and implementing legislation. At trial the defense sought records of four Nevada County deputy sheriffs and CHP Officer Rocha. On appeal defendant claims the motion should have been granted as to Officer Rocha.
The motion as to Officer Rocha was procedurally flawed, lacked merit, and in any event defendant suffered no prejudice.
The Nevada County Counsel opposed defendants motion on behalf of the deputy sheriffs. No opposition was filed on behalf of Officer Rocha. The proof of service attached to defendants motion clearly shows that onlythe Nevada County District Attorney was served with the motion.
A Pitchess movant must serve the governmental agency which has custody and control of the records. (Evid. Code, 1043, subd. (a); see Cal. Criminal Law Practice and Procedure. (Cont.Ed.Bar 2007) Discovery, 11:20, p. 275.) The Nevada County District Attorney does not have custody of CHP personnel records.
Both the individual officer and the law enforcement agency are entitled to invoke the privilege afforded to peace officer records. (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 56-57.) Absent notice to the CHP, the motion was ineffectual as to Officer Rocha. (Evid. Code, 1043, subd. (c) [absent full compliance with the notice provisions of this section trial court should not hold hearing absent good cause or waiver of defects in notice]; see City and County of San Francisco v. Superior Court (1993) 21 Cal.App.4th 1031, 1034-1035 [privilege nullified if a hearing . . . could be held absent notice to the individual whose records were involved].)
We are aware that defense counsel represented to the trial court that the CHP had been served. This representation is contradicted by the proof of service itself.
In any event, defendants Pitchess motion lacked merit. As relevant, defense counsels declaration asserted:
Defendant told investigating officers that he had been frisked at the scene by Officer R. A. Rocha of the California Highway Patrol. The frisk is not reflected in Officer Rochas report, and it is expected that he will testify that there was no such frisk. His credibility will be an issue.
This point was tangential and speculative. Defendant toldother officers that Officer Rocha had frisked him. Officer Rocha did not state that he had frisked defendant. Thus, the only conflict was created by defendants pretrial statements.
To show good cause as required by section 1043, defense counsels declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. These requirements ensure that only information potentially relevant to the defense need be brought by the custodian of the officers records to the court for its examination in chambers. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.)
Although the defense need describe only a plausible scenario of officer misconduct (Warrick, supra, 35 Cal.4th at p. 1026), the motion did not meet this threshold. Even if defendant could raise a doubt about Officer Rochas honesty such that the jury would conclude defendant had been frisked, that would not tend to exculpate him.
Defendant claims:
[T]he murder weapon was never found, notwithstanding an exhaustive search of the area. [Citation.] Zupan had no opportunity to hide the gun somewhere else because he remained at the scene of the crash until the police arrived. [Citation.] There were therefore two reasonable possibilities: He kept the gun on his person and the police did not find it because they never bothered to frisk him (as Rochas expected testimony would have shown), or else the actual gunman had escaped with the gun. (Italics added.)
Defendants claim of prejudice goes only to the firearm enhancement. Defendant posits that there are only two reasonable scenarios: [Zupan] kept the gun on his person and the police did not find it because they never bothered to frisk him . . . or else the actual gunman had escaped with the gun.
Defendant leaves out the most plausible scenario, the one supported by the record: Defendant shot his wife at the Patterson Valley Road turnout with one of his two .22 caliber pistols and hid the gun there. After it was arranged for Daniels to drive defendant home, he feigned being sick and induced Daniels to stop at the Patterson Valley Roadturnout to give him the chance to retrieve the gun. Although Daniels planned to drive defendant to the hospital, defendant had Daniels drop him off and took his own truck, giving him the chance to disassemble the gun, which he then threw into the Bear River on the way to Roseville, just as he described to his son.
There is no evidence supporting the existence of an unknown trigger man. Further, the gloves found near the shooting had gunshot residue on the outside and one had his DNA on the inside, directly linking defendant to the firing of the gun.
Therefore, not only was defendants scenario implausible, it is not reasonably probable he would have obtained a better result had he been able to show that he had been frisked: The evidence that he personally fired the gun was overwhelming. (See People v. Samuels (2005) 36 Cal.4th 96, 110 [incorrect denial of Pitchess motion is reviewed under state-lawstandard of harmless error].)
DISPOSITION
The judgment is affirmed.
MORRISON , J.
We concur:
SCOTLAND, P.J.
RAYE , J.
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