Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA063580, Gary J. Ferrari, Judge.
Frankie Fidel Jaramillo, in pro. per.; and Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WOODS, J.
Immediately after he killed Lynn Schockner, Nicholas Alexander Harvey was arrested for her murder. A police investigation implicated Frankie Fidel Jaramillo in arranging the murder and Manfred Schockner in paying to have his wife murdered.
Following a preliminary hearing of November 16, 2005, the three men were charged by information on December 1, 2005, with willful, deliberate and premeditated murder of Lynn Schockner (Pen. Code, §§ 187, subd. (a); 189). It was specially alleged the defendants committed the murder during the commission of a burglary (§ 190.2, subd. (a)(1)(17)) and for financial gain (§ 190.2, subd. (a)(1)). The defendants were also charged with first degree burglary with another person, other than an accomplice, present in the residence during the commission of the offense (§§ 459, 460, subd. (a)). As to both counts, the information specially alleged the defendants personally used a deadly weapon (a knife) (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) upon Lynn Schockner.
Statutory references are to the Penal Code.
After Jaramillo’s motion to set aside the information (§ 995) was heard and denied on February 21, 2007, his jury trial commenced on May 14, 2007.
The evidence of Jaramillo’s trial established on the morning of November 8, 2004, Scott Ritter reported to the Long Beach Police Department that a car with two people inside had pulled into the alley behind his backyard. A man stepped out of the car and said, “This is the one,” before he disappeared from sight. Ritter believed the man had entered the backyard of his neighbor, Lynn Schockner.
Officers arrived and positioned themselves around the perimeter of Lynn Schockner’s house. A locked gate prevented them from entering Schockner’s backyard and a fence blocked their view. An officer in front of the house noticed a barking dog at the front window, and then Lynn Schockner appeared. The officer beckoned Lynn Schockner to come outside and met her at the front steps. He told Lynn Schockner of Ritter’s suspicions and that police wanted to search her backyard but the gate was locked. Lynn Schockner explained she had been taking a nap, but told the officers to wait, and she would retrieve the gate key from the house.
Approximately 90 seconds passed. Officers heard nothing from inside the house, and Lynn Schockner had not returned outside. An officer opened the unlocked front door, stood on the threshold and called out to Lynn Schockner. At the same time, another officer yelled that a man was jumping over Lynn Schockner’s backyard fence into the alley. Officers converged on the man, who was later identified as Nicholas Harvey. Officers then entered the house and discovered the master bedroom had been ransacked. They also found Lynn Schockner on the patio; she was obviously dead, having suffered numerous stab wounds. The gate keys were on the ground next to her body.
Police searched Harvey incident to his arrest and found a short, double-sided dagger in his pocket and a pair of rubber gloves; both had fresh blood on them. Harvey also had in his possession a business card bearing the name of Lynn Schockner’s husband, Manfred Schockner. On the back of the business card was the following, “Fred and Lynn Schockner (Charles [their son]) 1125 East Andrews Drive, Long Beach, California, 90807.”
Police learned that Harvey had agreed to kill Lynn Schockner for $5,000, $2,500 of which was still owed to him for committing the murder. Long Beach Police Detective Kris Nelson was assigned to investigate the extent to which, if at all Jaramillo and Manfred Schockner had been involved in Lynn Schockner’s murder. Nelson agreed to pose as Harvey’s friend “John,” acting on Harvey’s behalf to collect his balance due of $2,500. Nelson was aware Jaramillo and Manfred Schockner were friends, having known each other since meeting at a gym that Jaramillo had managed. Jaramillo and Harvey had also met at the same gym, where Harvey was once employed by Jaramillo as a workout instructor.
During the investigation, Nelson made l0 to 12 recorded telephone calls to Jaramillo, each time pressing him for the money that either Jaramillo or Manfred Schockner owed to Harvey. At some point, Jaramillo met with Nelson and admitted he still owed Harvey $2,500, gave Nelson $1,000 for Harvey, and promised to provide an additional sum to make up for the delay in payment. In telephone calls, Nelson tried other ruses to force Jaramillo to implicate Manfred Schockner. Police detectives also interviewed Jaramillo and Schockner, hoping they would make incriminating statements.
Before the interview on December 2, 2004, detectives informed Jaramillo he was not under arrest, but they advised Jaramillo of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Jaramillo stated he understood those rights and waived them before any questioning occurred.
After initially denying any involvement in Lynn Schockner’s death, Jaramillo told detectives because Manfred Schockner stood to lose $2.5 million in a pending divorce he had hired someone to kill Lynn Schockner. Jaramillo admitted he had referred Harvey to Manfred Schockner, but believed it was for construction work or some other type of labor. It was not until a week later that Jaramillo learned Schockner had hired Harvey to murder Lynn Schockner. Jaramillo told Manfred Schockner he was not in favor of the murder plan and did not want to be involved. In response, Manfred Schockner reminded Jaramillo of the monies Jaramillo owed to him, but said the debt would be cancelled if the plan were successful.
Jaramillo admitted to police, he had followed Manfred Schockner’s instructions to give Harvey some information provided by Manfred Schockner, namely a business card with the names of Schockner family members, address, optimum time and easiest point of entry, and the alarm access code. Jaramillo also admitted having conveyed to Harvey Manfred Schockner’s desire for the murder to be committed soon. Jaramillo told police he had only complied with Manfred Schockner’s wishes out of fear for himself and his family. Jaramillo did attempt initially to dissuade Harvey from following through with the plan, but Harvey remained intent on committing the murder. As Jaramillo understood the plan, Harvey was to break into the house while Lynn Schockner was asleep, kill her and then stage a burglary before fleeing.
Following Jaramillo’s arrest on December 2, 2004, he agreed to wear a wire microphone in meeting with Manfred Schockner so their conversations could be recorded by police. Manfred Schockner was distrustful and communicated during the meeting by writing notes. After asking Jaramillo in a note, “Are you wired?” Manfred Schockner’s next note read, “Nick’s [sic] sloppy.” Schockner was arrested the next day.
The prosecution introduced into evidence telephone records showing numerous calls between Manfred Schockner and Jaramillo, and Harvey and Jaramillo on relevant dates. According to the records, Harvey and Jaramillo never telephoned each other. There was also evidence of payments made from Manfred Schockner to Jaramillo and his wife as well as deposits to their respective bank accounts.
At the close of the prosecution’s case, the trial court heard and granted Jaramillo’s motion for acquittal of the burglary charge (§ 1118.1) on May 23, 2007. The prosecution proceeded on the charge of first degree murder with the special circumstance allegation the murder was committed for financial gain.
Jaramillo testified in his defense he had known Manfred Schockner since 1999 and they were not only friends but had developed a financial relationship. Jaramillo had borrowed $77,000 from Manfred Schockner, but he had repaid most of the loan. Later, in the month before Lynn Schockner’s murder, Jaramillo received $50,000 from Manfred Schockner.
In late September 2004, Manfred Schockner asked Jaramillo to find someone to perform construction work. Jaramillo thought of Harvey whom he knew needed money, and Manfred Schockner gave his business card to Jaramillo. In early October 2004, Jaramillo telephoned Harvey and told him about Manfred Schockner’s need to have some construction work performed on his house. Manfred Schockner never asked Jaramillo to hire someone to kill Lynn Schockner.
Jaramillo complied with Manfred Schockner’s request to arrange for him to meet with Harvey in mid-October 2004. After the meeting, Harvey telephoned Jaramillo to say he had agreed to Manfred Schockner’s offer to pay him for killing Lynn Schockner. Jaramillo was “dumbfounded” and horrified. He attempted to persuade Harvey to change his mind about committing the murder, but Harvey insisted he needed the money. Jaramillo ultimately tried more than a dozen times to convince Harvey to abandon the murder plan, but Harvey declined. On more than two occasions, Jaramillo also attempted to talk Manfred Schockner out of having his wife killed. Each time Manfred Schockner refused and then threatened to harm Jaramillo and his family if Jaramillo intervened. Jaramillo was further threatened by an associate of Manfred Schockner, who reminded Jaramillo of his outstanding financial obligation to Manfred Schockner before reciting Jaramillo’s home address. Frightened, Jaramillo withdrew $3,000 from his bank account so he could pay Harvey $2,500 as demanded by Manfred Schockner, aware the money was partial payment for the murder of Lynn Schockner. About an hour later, Jaramillo gave Harvey the money and Manfred Schockner’s business card.
In late October 2004, Manfred Schockner became frustrated with Harvey’s failure to carry out the murder plan. At Manfred Schockner’s direction, Jaramillo repeatedly telephoned Harvey, telling him to follow through with the agreed-upon murder plan. Jaramillo arranged for a final meeting between Manfred Schockner at the end of October 2004. After the meeting, Jaramillo talked with Harvey about 52 times and discussed the murder plan about a dozen times, telling Harvey “to go down there and do what you got to do.”
Jaramillo acknowledged regret over his decision to refrain from notifying police about the murder plan. He also admitted having lied to detectives investigating Lynn Schockner’s murder. However, Jaramillo told the lies at Manfred Schockner’s direction, to divert attention away from Manfred Schockner, who “used [Jaramillo] as a pawn” in this case.
Jaramillo’s mother, Rosalee Aguilar, testified she had noticed an unfamiliar white car parked near her home several days every week for over a month following her son’s arrest. Inside the car were two people. Police informed Aguilar they could not intervene as long as the people remained in the car. An unfamiliar white car also followed the car of Aguilar’s daughter. When Aguilar, who was in her own car at the time, pulled in behind the white car, it sped up and drove onto the freeway. Aguilar did not pursue the white car.
The prosecution argued the evidence proved beyond a reasonable doubt Jaramillo was guilty of willful, deliberate and premeditated murder of Lynn Schockner for financial gain. The defense theory was the evidence established only implied malice; Jaramillo was guilty of second degree murder.
On May 24, 2007, the jury convicted Jaramillo as charged and found true the special circumstance allegation.
On June 21, 2007, the trial court sentenced Jaramillo to a life term without the possibility of parole. The court ordered Jaramillo to pay a $20 security assessment and a $10,000 restitution fine. On the same date, Jaramillo appealed from the judgment.
We appointed counsel to represent Jaramillo on appeal. After examination of the record counsel filed an “Opening Brief” in which no issues were raised. On January 11, 2008, we advised Jaramillo he had 30 days within which to personally submit any contentions or issues he wished us to consider. On February 13, 2008, we received a handprinted supplemental brief in which Jaramillo claimed his defense counsel rendered ineffective assistance by failing: (1) to subpoena certain key defense witnesses to support an affirmative defense of duress; (2) to present an affirmative defense of police entrapment; (3) to challenge the chain of custody of physical evidence; (4) to demand a probable cause determination hearing; (5) to object to the improper opinion of witnesses; (6) to raise relevant objections; and (7) to object to unspecified violations of police procedures that could have led to the destruction of evidence.
We have examined the entire record and are satisfied Jaramillo’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.) The record fails to demonstrate defense counsel provided ineffective assistance at any time during the proceedings in the trial court. (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
The judgment is affirmed.
We concur: PERLUSS, P.J., ZELON, J.