Opinion
C095289
05-09-2023
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ANTHONY COSTELLO, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CR-FE-COD-2018-0012123
DUARTE, J.
Defendant Christopher Anthony Costello was found guilty by a jury of first degree murder on an aiding and abetting theory, as well as the special circumstance that the murder was committed for financial gain. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(1).) On appeal, he contends reversal is required because insufficient evidence was presented to prove that he harbored the requisite intent to kill the victim. We disagree and affirm the judgment.
Further undesignated statutory references are to the Penal Code.
FACTS AND PROCEEDINGS
Factual Background
Around 9:45 p.m. on the evening of August 1, 2018, retired podiatrist Dr. Thomas Shock was shot and killed with what was likely a single gun firing .38 or .357-caliber rounds; he was found lying in the entryway beside the front door of his home. A neighbor heard a gunshot and saw a tall thin man run away after the shot, get into a car, and leave quickly. The car was later determined to belong to codefendant Raymond Jacquett.
Near the decedent's body, detectives found a page from a medical board complaint against Dr. Shock by his patient Bonnie Lee; the complaint was a public record that had been most recently electronically accessed by Bonnie Lee's husband, codefendant Robert Lee (Lee). Fingerprints belonging to defendant and codefendant Mallory Stewart, Jr., were found on that document. Telephone records showed that defendant had been in contact with Stewart and Lee. Stewart was six feet two inches tall, and thin. Defendant, Lee, Stewart, and Jacquett were arrested.
A subsequent investigation determined that Lee had withdrawn $5,600 from the bank in the days before the murder. A search of Lee's home discovered the rest of the medical board complaint (a page of which had been found next to Dr. Shock's body), and a note stating in part: "I hope Shock spends his time in hell . . . and I get to see him face-to-face, the dirty bastard, Shock." Lee owned at least three .38-caliber revolvers; officers searching Lee's house found .38-caliber ammunition, but not the revolvers.
Defendant was interviewed by police officers. He initially denied participating in the murder or even knowing Lee, and stated he did not know why his fingerprint was detected on the document found beside the victim's body.
Defendant then acknowledged that he knew Lee and that they met initially in the parking lot of a Quik Stop store, where defendant was selling music CDs. Lee paid him $100 "[j]ust for talkin' to him," and they got into Lee's truck. Lee told him that Dr. Shock had performed surgery on Lee's wife, and that her foot became infected, and she had died. Lee asked defendant to kill Shock and offered to pay him $4,000; defendant said in the interview that was not enough money to convince him to risk going to prison for life, but he told Lee he would get back to him. Lee drove around Lodi, withdrew money from an ATM, and Lee showed defendant where the doctor lived. Defendant clarified that he listened to Lee's story only to "finesse" a few hundred dollars out of him, "just to talk."
Defendant explained that he contacted his childhood friend Stewart, informed him of Lee's proposal, and told Stewart they were only pretending to go along with Lee's plan to get more money out of Lee. Stewart was bigger than defendant, which was necessary to make Lee believe they would actually commit the murder.
Defendant stated that he contacted Lee a week or two later with the intention of getting more money from Lee, and he, Stewart, and Lee met at Mel's Diner in Sacramento to discuss the matter. Jacquett drove defendant and Stewart to the meeting. Defendant told Lee that Stewart would kill Shock, and Lee paid them $500. Defendant told Lee he needed more money for a driver, so they went to Lee's house, where Lee paid him an additional $500. At that meeting, Lee showed him and Stewart a .38-caliber revolver and the medical board complaint. Jacquett drove defendant back to Stockton after leaving Lee's house.
Defendant asserted that he called Lee the next day for more money, but Lee informed him that the murder had already been committed and that he would not give defendant more money. Defendant then talked to Stewart, who acknowledged that he had killed Shock. Defendant told Stewart that they were just trying to take Lee's money. Defendant reiterated to officers that he did not intend to kill Shock.
Cellphone records proved that phones associated with defendant, Stewart, Jacquett, and Lee all contacted one another in the days leading up to the August 1 murder, from July 27 to July 31, including two multiparty calls between defendant, Stewart, and Lee lasting a total of 40 minutes. On July 31, Stewart sent Lee a text message stating: "hey im waitin for yall so I can get that job done for you."
On August 1, there were multiple calls between defendant, Stewart, and Lee. Phone records indicated that defendant and Lee were in the vicinity of Stewart's house in Sacramento around 1:00 p.m. There was no call activity between the phones from 1:00 to 2:00 p.m., whereas the relevant phones were frequently contacting each other previously. At 2:23 p.m., Lee's phone connected with a cell tower in the vicinity of Mel's Diner in Sacramento, where the evidence showed he withdrew $100. Between 3:00 and 4:00 p.m., phones associated with defendant, Jacquett, and Lee were in the vicinity of Stewart's house. Around 5:25 p.m. phones associated with Lee and Jacquett connected to a cell tower near Lee's residence, and at 6:24 p.m., defendant's phone did the same. At 6:46 p.m., Jacquett's phone connected to a cell tower between Lodi and Stockton, and at 7:10 p.m. defendant's phone connected to a cell tower in Stockton near his residence. At 7:19 p.m., Jacquett's phone was again moving north toward Lodi. From 8:17 to 8:21 p.m., Jacquett's phone connected to a cell tower near Lee's residence. Between 9:33 and 9:36 p.m., defendant's phone placed six calls to phones associated with Jacquett, Stewart, and Lee, but the calls went to voicemail or failed to connect. There was a break in all activity from cellphones associated with defendant, Stewart, Jacquett, and Lee from 9:36 p.m. to 10:03 p.m.--approximately 9 minutes before to 18 minutes after the 9:45 p.m. murder.
Just after 2:00 a.m. on August 1, Stewart sent a text message to defendant that included a different phone number associated with his girlfriend and said" 'by call D-A-T number, my phone G-O-B-E be off.'" Consistent with that text message, cellphone location evidence indicated that Stewart's phone remained in the vicinity of his residence on August 1.
Lee's phone called defendant's phone at 10:03 and 10:06 p.m.; the calls lasted 21 and 11 seconds, respectively. Defendant's phone called Lee's phone at 10:12 p.m. for one minute and 40 seconds, and Jacquett's phone at 10:15 p.m. for just under two minutes. Cellphone location data indicated that Jacquett was driving north from Lodi back to Sacramento.
On August 2, defendant's phone had multiple calls with Lee's and Stewart's phones. In all, defendant's phone contacted Lee's multiple times between July 31 and August 2. Defendant's and Stewart's phones connected more than 150 times between January 2018 and August 2018, and defendant's phone contacted Jacquett's several times on the day of the murder and the day after.
Procedural Background
A consolidated information charged defendant, Stewart, Lee, and Jacquett with murder (§ 187, subd. (a)); as relevant here, the information also alleged that defendant perpetrated the murder for financial gain (§ 190.2, subd. (a)(1)). Defendant's case was severed from those of his codefendants.
A panel of this court affirmed Jacquett's conviction, although it vacated the sentence imposed by the trial court and remanded for resentencing, in People v. Jacquett (Jul. 14, 2022, C091059) (nonpub. opn.).
Defendant's jury was instructed that defendant's intent to kill was a required finding for a verdict of guilty as to aiding and abetting a premeditated murder, as well as required to show the murder was for financial gain. Conspiracy was not charged, although the jury was instructed on evidence of uncharged conspiracy, including that intent to kill was required to prove conspiracy to commit murder, and the effect of evidence of withdrawal from a conspiracy.
The jury found defendant guilty of first degree murder and found true the allegation that the murder was committed for financial gain. The trial court sentenced him to life in prison without the possibility of parole.
Defendant timely appealed. After numerous extensions were requested by the parties, the case was fully briefed in February 2023, and assigned to the current panel on February 28, 2023.
DISCUSSION
I
Substantial Evidence of Defendant's Intent to Kill
Defendant contends insufficient evidence proved that he ever intended to kill Dr. Shock. The Attorney General disagrees, as do we. Applying the required deferential standard of review, we view the evidence in the light most favorable to the prosecution and the verdict and conclude that a rational trier of fact could have properly found defendant intended to kill on this record.
We agree with defendant that a discussion of his withdrawal from any (uncharged) conspiracy is irrelevant, as he contends only that the evidence failed to show he was "part of any agreement to kill in the first place."
A. Standard of Review
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one.' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." '" (People v. Smith (2005) 37 Cal.4th 733, 738-739.)" 'In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
B. Analysis
There is rarely direct evidence of a defendant's intent to kill. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Rather, such intent must usually be derived from all the circumstances, including the defendant's actions. (Ibid.) Defendant contends that Lee, Stewart, and Jacquett were involved in a murder for hire plot, but that the evidence showed only that he was merely pretending to be involved in the murder plot, while intending to con Lee into giving him as much money as possible. He notes in support that he was not at the murder scene, no evidence showed what he said to Lee, Stewart, and Jacquett during their conversations, he told police officers that he only intended to "finesse" Lee out of his money, and there was no evidence to contradict what he told officers regarding his intent.
Defendant's arguments are unpersuasive. He does not dispute that substantial evidence shows Lee wanted to kill the victim, Lee paid defendant to kill the victim, defendant communicated on numerous occasions with Lee, Stewart, and Jacquett in the days leading up to the murder and the days after the murder, defendant acknowledged at trial that Lee, Stewart, and Jacquett were involved in a plot to murder the victim, Stewart actually killed the victim with Jacquett driving him to and from the murder scene, defendant's fingerprint was on a page from a medical board complaint connecting Lee to the victim and left beside the victim's body, and defendant repeatedly attempted to call the three others minutes before the murder and spoke with Lee and Jacquett minutes after the murder. These facts all indicate that defendant intended to kill Dr. Shock and that he participated in a plot to kill Shock for financial gain.
While we acknowledge that defendant told law enforcement he intended only to con Lee, not participate in the murder plot, the jury was entitled to find that defendant's self-serving statements lacked credibility (see People v. Hovarter (2008) 44 Cal.4th 983, 996 [jury assesses witness credibility]), and that defendant's prior false statements exhibited consciousness of guilt. The jury could have reasonably found that defendant made false statements when he denied knowing Lee, denied knowing how his fingerprint came to be on the medical complaint found next to the Dr. Shock's body, and only found out about the murder the day after it had occurred when he called Lee to request more money. The evidence showed that defendant attempted to call Jacquett, Stewart, and Lee six times less than 10 minutes before the murder, Lee called defendant twice less than 20 minutes after the murder, defendant called Lee two minutes later, and Jacquett called defendant a minute after that. While, as defendant emphasizes, there is no evidence of what was said during these phone calls, a reasonable jury could infer that defendant called the others before the murder to inquire into the status of the plot, and the others called him after the murder to report that they had succeeded in killing Shock.
The jury was instructed with CALCRIM No. 362 as follows: "Consciousness of Guilt: False Statements. [¶] If a defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide misleading and important answer. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Similarly, while we recognize there was no evidence that defendant was present at the scene at the time of the murder, the evidence showed that his role in the murder was as a middleman, rather than as the shooter or getaway driver. Lee initially approached defendant about committing the murder, and defendant recruited Stewart to take part in the plot, told Lee that Stewart would commit the crime and was paid for that purpose, participated in multiple phone calls and meetings with Stewart, Jacquett, and Lee in the days leading up to and on the day of the murder, attempted to communicate with Jacquett, Stewart, and Lee minutes before the crime was committed, and communicated with Lee and Jacquett approximately 30 minutes after the murder occurred. Accordingly, substantial evidence supported the finding of defendant's intent to kill, and thus the jury's verdicts, despite the fact that defendant was not at the scene of the crime.
As we noted ante, defendant's intent must be derived from all of the circumstances, including his actions. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) The totality of the circumstances here provide substantial evidence that Lee approached defendant for the purpose of killing Dr. Shock, Lee paid defendant to ensure the crime was committed, defendant's recruits committed the fatal act, and Lee and Jacquett reported back to defendant that the job had been done. On this record, defendant's assertion that he had no idea Stewart was going to kill Dr. Shock is implausible at best, and the jury was not required to credit it. Defendant's claim of insufficient evidence lacks merit.
DISPOSITION
The judgment is affirmed.
We concur: Mauro, Acting P.J., McAdam, J. [*]
[*]Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.