Larissa Schuster is an American woman who
was sentenced to life in prison without parole at Valley State Prison
for Women in Chowchilla, California in 2008 for committing the 2003
murder of her estranged husband Timothy Schuster by submerging his
body in hydrochloric acid. Due to the unusual manner in which she
committed the murder, Larissa's case made national headlines. She has
been dubbed as "the Acid Lady" by various media outlets.
Larissa Schuster (nee Foreman) was born in 1960 and
grew up on a farm in Clarence, Missouri. She went on to attend the
University of Missouri studying biochemistry. While working at a
nursing home, Larissa met Timothy Schuster, who was attending nursing
school. In 1982, Larissa and Tim married, and they had a daughter
Kristin in 1985, followed by a son Tyler in 1990. In 1989, the family
moved west to Fresno, California, where Larissa took a job at an
agricultural research lab. She later went on to open her own
laboratory, Central California Research Labs. The family was able to
move to a larger home in Clovis, California, in 2000. By 2001, Larissa
was making double Tim's annual salary.
By 2003, the Schusters' marriage had declined. In
2002, Larissa filed for divorce, which would prove to be acrimonious.
Larissa and Tim fought over custody of their son Tyler and the
splitting of their joint assets. Larissa was eventually awarded
primary custody of Tyler and was allowed to stay in the couple's
house. Tim moved out into a condominium, but in August 2002, Larissa
and her lab assistant James Fagone broke into Tim's home to retrieve
some of her belongings. Larissa reportedly stated to her friend Terri
Lopez: "Well, I want [my husband] dead. You don't understand. I could
do it and get away with it".
On the morning of July 10, 2003, Tim Schuster was
supposed to meet with a co-worker for breakfast, but had apparently
missed the appointment. Later that day, he was supposed to retrieve
his son from Larissa, but he never showed up.
Larissa immediately became the prime suspect in her
estranged husband's disappearance. She was initially interviewed by
the Clovis Police Department, but was not charged. Despite her husband
being missing, Larissa and her son took a planned vacation to
Disneyworld and then to Missouri. In the meantime, police interviewed
Larissa's co-worker James Fagone, who was more forthcoming in his
During his police interrogation, James Fagone
revealed that he and Larissa Schuster were responsible for the
disappearance and murder of Timothy Schuster. James admitted that on
the night of July 9, 2003, he and Larissa lured Tim from his home. The
pair then used chloroform and a stun gun to incapacitate Tim, then
disposed of his unconscious body in a 55-gallon barrel, and attempted
to dissolve his body with hydrochloric acid. With a search warrant,
police searched Larissa Schuster's storage unit, where they discovered
the liquefied remains of her husband Tim. Larissa Schuster was
arrested for first-degree murder at the St. Louis Airport.
Trial of James Fagone
James Fagone, who had also been charged with
first-degree murder as well as kidnapping, went to trial in November
2006. His defense was that Larissa Schuster was the mastermind of
Timothy Schuster's murder, and that he only acted as an accessory to
murder after the fact under duress, maintaining that Larissa had
threatened his life. Defense testimony came from James' friends,
co-workers, and Larissa's friend Terri Lopez, all of whom stated that
Larissa was a very controlling and forceful person. However, James had
already confessed to the crime, which he had unsuccessfully tried to
Jurors were shown the video of James' police
interrogation, where he is shown saying: "I held the barrel for her,
put him in, poured all the solution and she like couldn't stand it. So
she said, put it on, the lid on. So I helped her put the lid on and
she put it in the shed." Although James Fagone was acquitted of
kidnapping, he was found guilty of first-degree murder, and despite
jurors' pleas for leniency, he was sentenced to life without parole.
Trial of Larissa Schuster
Larissa Schuster's murder trial began on October
15, 2007, more than four years after she was charged. Her trial had to
be moved from Clovis, California, to Los Angeles due to the pre-trial
publicity. She had almost been dubbed the "Acid Lady" by various media
outlets in Fresno.
Prosecutors had alleged to the jury that Larissa
Schuster had attempted to solicit Tim's murder before, believing that
she could get away with it. They also played graphic and berating
phone messages from Larissa that Tim had saved on his answering
machine. Prosecutors also stated how Larissa had access to all the
chemicals used in the murder, being that she was a biochemist in a
Although her accomplice James Fagone did not
testify in Larissa's trial, Larissa decided to take the witness stand
in her own defense. Her attorney admitted that she had made a series
of bad decisions, but that she was not guilty of the crime alleged
On the stand, Larissa testified how she had no
foreknowledge of the murder and that James Fagone was actually Tim
Schuster's killer. She stated that James had told her: "I heard him
say something like 'there had been an accident and Tim is dead.' I
thought he was joking." She did however, admit to moving Tim's body.
When confronted over the phone messages on Tim's answering machine,
Larissa replied with: "It is something I'm really ashamed about. You
have to realize that is something... a result of many accumulative
She also maintained that the reason for the large
amounts of chemicals at her laboratory were not to be used for the
murder of Timothy Schuster, but for a wholesale cleaning of the items
at the lab. Her testimony proved to have not swayed the jury; she was
found guilty of first-degree murder with the special circumstance of
Due to the special circumstance finding, Larissa
Schuster was mandatorily sentenced to life without parole on May 16,
2008. At her sentencing hearing, her daughter Kristin, gave a victim's
impact statement: "You've given up all rights as a mother, wife,
daughter, friend and woman. You're a disgrace to this family-a pitiful
excuse for a human. I pray you're continually haunted at night by the
sight and sound of my father fighting for his last breathing moments
on this earth. I hope you toss and turn and have horrible nightmares
visualizing the horrific act of violence you have committed."
Larissa is serving her sentence at the Valley State
Prison for Women in Chowchilla, California, while James Fagone is
serving his sentence at the Calipatria State Prison in Calipatria,
California. In February 2011, Larissa's murder conviction was affirmed
by the Fifth District of California Court of Appeal.
The murder of Timothy Schuster was featured on
Snapped and Dateline NBC in 2009, Deadly Women in
2011, and Sins and Secrets in 2012.
Larissa Schuster Sentenced to Life in Prison
May 16, 2008
(KFSN) -- Larissa Schuster will spend the rest of her life in
prison. Before she learned her punishment, Larissa heard many
emotional statements from her former husband's family and friends.
Some of the harshest words came from her daughter.
Kristin Schuster has waited several years to
finally confront her mother. She said in court, "You've given up all
rights as a mother, wife, daughter, friend and woman. You're a
disgrace to this family-a pitiful excuse for a human." Kristin called
her father Tim Schuster her rock and best friend, "I pray you're
continually haunted at night by the sight and sound of my father
fighting for his last breathing moments on this earth. I hope you toss
and turn and have horrible nightmares visualizing the horrific act of
violence you have committed."
In December, a Los Angeles County jury convicted
Larissa Schuster for murdering Tim and stuffing his body in a barrel
of acid. The victim's mother recalled his final moments submerged in a
caustic chemical. Shirley Schuster said, "I can't even imagine his
last hours and the pain he must of gone through. How I wish I could
have been there to help him with his pain."
A total of seven people addressed Larissa on
Friday. Even with all the emotions, she never cried and did not say
anything. Schuster's defense attorney Roger Nuttall said he advised
her to keep quiet, "I'm not going to say she's up or down. She's
accepting what she knew would happen today."
Larissa's friend in court sobbed when the judge
announced her punishment, but her own daughter used it to close a sad
chapter in her life. Kristin said, "So this is good-bye not just for
now but for good. This is good-bye as your daughter."
Life in prison without the possibility of parole
was the only option for the judge, because the jury convicted the
defendant of first degree murder plus special circumstances.
Schuster's defense team plans to appeal. She was also ordered to pay
for the victim's burial expenses.
Larissa Schuster's Found Guilty of First Degree
December 12, 2007
(KFSN) -- A guilty verdict comes more than four years after
Timothy Schuster's death and two days after the start of
Tim Schuster's wife Larissa was convicted this
morning of first degree murder with a special circumstance.
That makes her eligible for life in prison without
Jurors deliberated two and half days before they
found Larissa Schuster guilty.
Her parents and the victim's mother sat just one
row behind the defendant.
The judge warned people not to show outward
expressions of emotion as Larissa Schuster learned the verdict.
"We the jury in the above and entitled action found
the defendant Larissa Schuster, Guilty of First degree murder of
Larissa Schuster expressed very little emotion.
But behind her Timothy Schuster's mother smiled.
"My thought about smiling yes I know my family is
smiling right now as well as Tim," said Shirley Schuster, victim's
"On behalf of Larissa Schuster and her family, we
are indeed disappointed in the verdict," said Roger Nuttall, Larissa
Defense attorney Roger Nuttall plans to appeal.
The prosecutor Dennis Peterson thanked jurors for
their service in a gruesome murder trial that spanned 7 weeks.
"It was clear that there was a motive, there was
planning there was execution of plan. We believe they've done a very
good job accessing her credibility as a witness," said Dennis
Larissa and the late Tim Schuster have two children
who now live out of state. They were not present to hear the verdict
or watch their mother taken away in handcuffs, awaiting her
The jury also found the special circumstance of
murder for financial gain true. That will impact her sentencing. She
now faces life in prison without the possibility of parole. Larissa
Schuster will now be taken from Van Nuys to Fresno. She will learn her
punishment January 16.
By Bryan Lavietes
A joyful married life
Once upon a time, Larissa and Tim Schuster were a
happily-married couple. They had similar backgrounds: both had grown
up on farms, Larissa in Clarence, Mo., and Tim in Golden, Ill. They
had met in Missouri, working at the same nursing home while in
college; Larissa was studying biochemistry at the University of
Missouri and Tim was attending nursing school. They fell in love and
married in 1982. Three years later they had a daughter Kristin. As
their family expanded, so did their professional opportunities and in
1989, the family moved to the Fresno, Calif., area where Larissa took
a job at an agricultural research lab in Madera. Their son Tyler was
born in 1990.
Larissa became the family's primary breadwinner
when she subsequently opened her own successful business, Central
California Research Laboratories (CCRL), where she specialized in
biochemistry for the agricultural industry. As Larissa worked longer
hours getting her business up and runningneighbors said she routinely
left the house at 6:30 a.m. and wouldn't return until 7:30 p.m.Tim
happily stepped into the "Mr. Mom" role. It would fall to him to take
the children to doctor's appointments, music lessons, and football
Larissa's hard work paid off, and in 2000, the
couple bought a pricy home in nearby Clovis. Records show Larissa
earned $160,000 in 2001, while Tim made $77,290 as an administrator at
St. Agnes Medical Center. The family attended Hope Lutheran Church in
Fresno and Tim was a member of the Clovis Masonic Lodge.
The marriage crumbles
By 2003, cracks in the foundation of the Schuster
family were becoming visible. Tyler was not yet a teen, but Kristin
had become a willful teenager. Kristin acted out: sneaking out of the
house, missing curfew and dating boys of whom her mother disapproved.
Fights between Larissa and Kristin became so frequent and so heated
that Larissa sent Kristin back to Missouri to live with Larissa's
After 21 years, the Schusters' marriage was on the
rocks as well. Larissa complained of Tim's impotence and would later
admit to having had an affair in 1993. Family friends Bob and Mary
Solis say the Schusters drifted farther apart as Larissa's laboratory
business continued to grow and she spent more time on the road for
work. Friends and neighbors recalled Larissa as the assertive half in
the relationship and that Tim was content to be the meek,
In February 2002, Larissa filed for divorce.
Neither spouse moved out at first, but the two slept on different
floors of the home. That summer, while Larissa was visiting relatives
in Missouri, Tim packed his things and left the family home. However,
he refused to back down in the financial disputes of the divorce
proceedings, causing hard feeling on Larissa's part.
Tim's moving out kicked off an escalating
confrontation. Larissa objected to his taking certain pieces of
furniture and other belongings, so in August she and an accomplice
broke into Tim's condo that August to retrieve them. Tim later
obtained a gun permit and a 9 mm handgun. Larissa left her husband a
number of profanely abusive voice mails, which he saved.
Custody of Tyler was given to Larissa, with Tim
taking his son every other weekend. The drop-off would usually occur
during Larissa's weekly nail appointment with her long-time manicurist
Terri Lopez. Lopez said Larissa would often rage about her estranged
husband, profanely impugning his virility. Lopez said Larissa once
blurted out, "Well, I want [my husband] dead," and later told Lopez,
"You don't understand. I could do it and get away with it."
A plan is hatched
Despite her profound and unconcealed anger, no one
suspected that Larissa Schuster had actually put her mind to work on a
scheme to be rid of Tim permanently. She enlisted the help of James
Fagone, 21, who had worked for Schuster both in the lab and as a
babysitter for Tyler, and, he later admitted, had helped Larissa
burglarize Tim's condo in August 2002. Fagone would later tell
authorities that Larissa asked him to buy a stun gun and zip-ties, but
that he hadn't known exactly what she planned to do with them. Larissa
then allegedly told Fagone that there were other things Tim had taken
when he moved out that didn't belong to him. Fagone would later say he
thought they were going to Tim Schuster's house to take back other
items that rightfully belonged to Larissa. Larissa allegedly told
Fagone that Tim had installed a home security system in his condo
since their August burglary, and that they would need to take her
things back while Tim was in the condo.
Fagone claimed that Larissa had felt that Tim might
offer some resistance. Fagone later admitted that he suggested
something he had once seen in a movie and had researched online: using
chloroform to knock Tim out. Fagone would later claim he thought they
were simply going to rob Tim. He would tell authorities he had no idea
how grisly the scheme would become.
Murder most gruesome
Under questioning by police, Fagone soon cracked,
and recounted his version of events:
On the night of Thursday, July 9, 2003, Fagone
alleged, Larissa put her plan into action. She called Fagone and told
him to get the supplies ready, and they made their way to Tim
Schuster's home in Clovis.
At roughly 2 a.m. Friday morning, Larissa and
Fagone pulled up outside Tim's home. Larissa called Tim from her cell
phone. Fagone would testify that he crept up to the house while she
told her estranged husband that Tyler was sick and she needed Tim to
come to his front door immediately. Tim did so, and was met there by
Larissa and James. James jolted Tim with the stun gun while Larissa
chloroformed him and then tied a plastic bag over his head. They bound
Tim's arms and legs with zip-ties.
They drove Tim's body to Larissa's home for the
next step in her plot: disposing of the body. With Fagone's help,
Larissa stuffed Tim into a blue 55-gallon plastic drum and poured in
jug after jug of hydrochloric acid. In one account to police, Fagone
said that Tim might still have been alive at the time he was doused.
Either way, Tim Schuster was by the end of the night dead in the
barrel and his body was likely soon to be entirely eaten away in his
acid-filled, blue plastic coffin, leaving no identifiable trace of his
Tim is missing
Tim's friend and colleague, Mary Solis, was
supposed to meet Tim for breakfast on the morning of July 10, 2003.
Like Tim, whose last week had been miserable in more than one way,
Solis had just been laid off from St. Agnes Medical Center and had her
exit interview scheduled for that morning, just like Tim. They had
planned to meet and share experiences, so when Tim never showed and
never called, Solis was worried. This wasn't like Tim at all. Solis
called another mutual friend, Victor Uribe, who made his way over to
Tim's home to check on him. Uribe found Tim's watch, wallet, and cell
phone on the property. To Uribe, this was a big red flag: Tim was
never one to leave his cell phone behind, even when he went jogging.
By the custody-sharing schedule, Tim Schuster was
supposed to pick up Tyler on the afternoon of July 10 at the customary
spot, the nail salon where Larissa had her manicures. Lopez recalled
that Larissa seemed more upbeat than ever about her split from Tim
that day and recalled Larissa saying, "I have a feeling the divorce is
going to go my way." Tyler waited out front for a while, and then came
back to tell Larissa that Tim hadn't shown up. During Larissa's
appointment, Solis, as part of her search, called Lopez to ask if Tim
had shown up. Lopez recalled Larissa's hands as being too sweaty to
allow the glue for her acrylic fingernails to dry properly.
The Solises feared the worst, but the police would
not accept a missing persons report until Tim Schuster had been gone a
full 24 hours.
Larissa behaves strangely
Larissa's best friend and co-worker, Tami Belshay,
would later report to authorities that Larissa had acted atypically in
the days after Tim's disappearance. On Friday, July 10, Larissa showed
up at the office at 10 or 11 a.m., instead of her usual starting time
of 7:30 a.m. Belshay reported that Larissa came into Belshay's office
about that time, saying she was sore from working out too hard. Over
the weekend, Larissa mentioned that Tim had neglected to pick up Tyler
on Friday and also made a point to mention Tim had been laid off from
Belshay didn't believe her friend had anything to
do with Tim's disappearance and assured Larissa that the police were
just following procedure. The two friends talked about search
warrants: when Belshay said police would have the right to search the
home even if Larissa were away on her planned vacation, Larissa seemed
unnerved and asked Belshay to come over to watch Tyler while Larissa
went to the office "to take care of some bills" before leaving for
Missouri. When Larissa did not return after a few hours as they had
discussed, Belshay called her, and Larissa told her it was ok for
Belshay to leave Tyler at home.
The following Monday, Belshay was talking about the
strange disappearance with co-worker Leslie Fichera, who offered an
odd story about a weekend meeting with Larissa. Fichera recounted that
Larissa had called her that Sunday and told her to rent a moving truck
so Larissa could move a rototiller. Fichera had done so, but had been
puzzled when she later saw Larissa driving the truck on the opposite
side of town from Larissa's home.
Were was Tim Schuster?
When Tim had been missing the requisite 24 hours,
Bob and Mary Solis called the Clovis Police and reported the
disappearance. Murder wasn't the foremost thought in their minds. Tim
had just gotten divorced and had just lost his job. Perhaps he had
just dropped everything for a lost weekend in Las Vegas or time alone
in the mountains, or, more ominously, maybe he had become suicidal and
done something drastic?
On July 11, Detectives Vince Weibert and Larry
Kirkhart drove over to search Tim Schuster's house they found Tim's
gun stuffed in the cushions of a living room chair. Although they knew
about the nasty divorce, they were still taken aback when they found a
series of obscene, vitriolic messages from Larissa on the answering
machine. They also found caller ID records on Tim's phone showing a
call from Larissa had been received in the early hours of July 10.
Weibert immediately called Larissa in to the police
department for an interview, which began late that same evening. For
police, it would be a very illuminating conversation.
Larissa's police interview
In that videotaped interrogation, Larissa claimed
she had no special knowledge of Tim's disappearance and that she
didn't believe Tim would take his own life. She admitted that she
disliked Tim immensely, but passed that off as normal in a
When she told police she had not called Tim in a
long while, the police began to poke holes in her story. Larissa
flatly denied making the late-night phone call to her estranged
husband. When confronted with the Caller ID records, she offered that
she may have hit a speed-dial button on her cell phone while sleeping.
The detectives asked if she had her cell phone with her, and Larissa
said she did not. The detectives then asked for a short break and
surreptitiously walked to her car. The cell phone was in plain sight,
so they asked a now-flustered Larissa to retrieve it. Then they
methodically went through all her speed-dial numbers together and
found Tim Schuster was, in fact, not on her speed dial. The detectives
also noted small cuts on Larissa's leg. Police reviewed Larissa's cell
phone records which led them to someone of whom they had never heard
before: James Fagone.
The plot discovered
When Larissa and Tyler Schuster flew out of town on
a planned family vacation to visit Disneyworld and Larissa's family in
Missouri, Clovis Police turned their attention to James Fagone. They
called Fagone in for a series of interviews, little by little getting
more and more of the story. In his third police interview, Fagone
admitted to helping Larissa Schuster murder her former husband.
In an attempt to corroborate Fagone's story, they
asked him what happened to the stun gun he had used to incapacitate
Tim Schuster. Fagone told them that he had disposed of it in a
Porta-Potty at a nearby construction site. Sgt. Jim Koch and Det.
Vince Weibert drew the unpleasant assignment of digging through human
waste to find the stun gun. When they retrieved it, they concluded
Fagone was telling the truth about what happened.
The most repugnant bit of evidence-collecting,
though, was yet to come.
The body in the barrel
With Larissa Schuster now clearly in their sights
for the murder of Tim Schuster, authorities obtained search warrants
for Larissa's home, office, and the storage locker in Fresno they had
learned Fichera had rented for Larissa.
Sgt. Jim Koch was among the investigators assigned
to search the storage unit. Immediately upon opening the locker, he
was hit by a foul stench. Investigators found the blue barrel tucked
away amongst the sundry bric-a-brac amassed over the course of Larissa
Donning protective jumpsuits and headgear, police
pried open the top of the barrel and were repulsed by the smell of
death, and by what they had found: the half-dissolved remains of a
human being. Tim Schuster's arms, head and torso had been entirely
dissolved in the acid only his trunk and legs remained.
And thus, less than a week after the murder
occurred, arrest warrants were issued for Schuster and Fagone. Police
found Fagone at home with his parents. They tracked Larissa Schuster's
itinerary and had authorities arrest her at the St. Louis airport,
where Fresno and Clovis investigators flew to retrieve her.
Trial of James Fagone
James Fagone and Larissa Schuster were tried
separately for their roles in the murder of Tim Schuster. For James
Fagone, the courtroom fight for his life began on November 27, 2006.
With a videotaped confession and much corroborating
evidence, James Fagone's defense attorney Pete Jones had an uphill
battle at trial. Unsurprisingly, he blamed everything on Larissa, whom
he portrayed as the mastermind who had manipulated his client into
assisting in murder: "The road to perdition for Mr. Fagone begins with
a sick, sadistic, sociopath named Larissa Schuster," Jones said.
James Fagone took the stand in his own defense and
told the jury that the murder plot had been all Schuster's and that he
had allowed himself to be dragged along because he was deathly afraid
of her. Fagone told jurors that his boss was mercurial like Jekyll and
Hyde. "In the beginning she was a nice boss, incredibly charming with
so many good qualities, but that's not what she turned out to be."
Fagone admitted Larissa had paid him $2,000 to help
her, but he thought the plan was to simply burglarize Tim Schuster,
not kill him. He said that he thought there would be reprisals against
him if he chose not to help in the crime: "She said she had friends
who were criminals," he declared, "she had clout; she had money; she
had friends in high places; she was involved with the Masons; she knew
everybody. I was scared of her."
After taking Tim back to Larissa's, Fagone said he
was struck "dead silent" by the sight of her pouring roughly three
gallons of acid into the barrel where the body had been stashed. "I
was completely scared after seeing someone murdered in front of my
eyes and forced to participate. I wished to God it was only a
nightmare. I figured that if she had killed him, what would she do to
me since I knew everything that had happened."
Fagone added more macabre details, recounting the
transport of the barrel from Larissa's home to her office two days
after the murder. When they opened the barrel, Fagone was overcome by
the horrible smell. Still, he poured more acid into the barrel at
Larissa's behest. When the additional acid forced the body above the
lip of the barrel, they could not close it. So Larissa allegedly cut
off Tim's feet to enable them to get the top back on.
Prosecutor Dennis Peterson went after Fagone on
cross-examination. He pointed to the $2,000 payment from Larissa
Schuster as the price for murder. Still, Fagone insisted he thought
the money had been given to him to enlist his help in a robbery, not
On December 12, 2006, the jury sided with
prosecutors, and James Fagone was convicted of first-degree murder and
sentenced to life imprisonment without the possibility of parole.
After the trial, two Fagone jurors were moved to write the judge and
ask leniency for the young man they believed was unduly influenced by
an older woman.
Schuster's trial is moved
Due to the extensive coverage of the case in the
local media, Judge Wayne Ellison took the extraordinary step of
changing the venue for Larissa Schuster's trial to a courtroom in Van
Nuys, Calif. It was the first time since 1993 that a Fresno Superior
Court judge tried a case elsewhere.
Prosecutors decided they would not seek the death
penalty against Larissa Schuster, but that wasn't the last bit of good
news for her defense team. Judge Ellison ruled that Fagone's
highly-damaging videotaped confession to police would not be
admissible in Schuster's trial. Judge Ellison said the tapes could not
be played in court because Schuster's attorneys would have no ability
to cross-examine Fagone, who was appealing his conviction and refused
to cooperate with prosecutors.
If prosecutors had been able to convince James
Fagone to testify at Larissa's trial, they might have been able to get
the tapes in evidence, but since Fagone had already been sentenced to
a mandatory life in prison they had nothing to offer him in exchange
for his testimony.
Prosecutors would have to seek a conviction against
the intelligent and cunning Larissa Schuster using only circumstantial
Schuster's trial begin
On Monday, October 22, 2007, the case of California
vs. Larissa Schuster began in front of a jury of nine women and three
men. In his opening statement, prosecutor Dennis Peterson detailed
Larissa Schuster's plot and told the jury that Tim Schuster had been
still breathing when he was dumped head-first into the barrel and
submerged in acid. Peterson told the court that Larissa committed the
murder for financial gain because she didn't want to share the family
property in a divorce settlement.
And while the prosecution was forced to rely on
circumstantial evidence, they were blessed with lots of it. Police
found a fresh round imprint on the dusty floor of a shed on Larissa
Schuster's property detectives believed this showed the barrel had
been stored there before being moved to CCRL and then to the storage
Also, Larissa's business had purchased an unusually
large quantity of acid 12 gallons of hydrochloric acid and 4 gallons
of sulfuric acid just a month before Tim's death. Larissa's lab
employee Leslie Fichera was called to the stand to testify that CCRL
typically used less than a bottle of acid per year. Fichera also noted
that Larissa had become increasingly angry at Tim throughout the
divorce, wishing he would "crawl away and somewhere and die" rather
than fight for his 49% share of CCRL. Later, a Clovis police sergeant
would recount that Schuster's computer showed evidence of Google
searches for the phrases: "acid, digestion, tissues," "acid,
digestion, animal tissues" and "sulfuric acid."
Other CCRL workers provided damaging testimony
about the 55-gallon sealed drum, which was unlike the ones used at the
lab. Joseph Boatwright recalled Larissa asking him if he thought a
body could fit in the barrel. Boatwright said he assumed she was
asking in jest.
Larissa's own words
Jurors watched more than two hours of Larissa
Schuster's police interrogation in which she portrayed her husband as
volatile and controlling but worried about how Tim's disappearance
would affect their young son. Then Bob Solis was called to the stand
to talk about his friend Tim and contradict Larissa's disparaging
Elsewhere in that videotaped interview, Larissa
told detectives she prayed that Tim would "get over this hostility"
during the divorce, but manicurist Terri Lopez gave a different
version of Larissa's prayers. She told the jury that Larissa "told me
that she prayed every night he would die." Hairstylist Becky Holland
sometimes did Larissa Schuster's hair recalled her client ranting
about her estranged husband during appointments. Initially, Holland
chalked it up to run-of-the-mill divorce animosity, but as the hatred
escalated, she thought, "This is starting to get a little creepy. It
was so intense."
Jurors had the opportunity to hear that intensity
for themselves as prosecutors played nearly two dozen voice mails from
Larissa to Tim Schuster in open court. In addition to the many
derogatory names she called her husband, were veiled threats about the
couple's relationships with their children: "I'll tell you what, this
is going to come back to haunt you... You talk about me alienating
your kids, you're doing a damn good job yourself. And you just wait,
it's coming, sweetheart." Whereas prosecutors pointed to the messages
as proof of her murderous rage, defense attorneys portrayed the calls
as an unfortunate outgrowth of a bad divorce. In fact, defense
attorney Roger Nuttall emphasized, the voice mails were left between
May and November 2002 a full seven months before Tim's murder.
The defense's case
In a somewhat unusual move, defense attorney Roger
Nuttall reserved his opening statement until after the State rested
its case. So when the prosecutors finally sat down, Nuttall confronted
the jurors with a passionate plea for his client's innocence. Neither
he nor his client could give details about Tim Schuster's death
"because we don't know," he intoned.
Nuttall maintained his client had nothing to do
with the murder of her estranged husband. Having heard relatively
little about James Fagone in the prosecution case, Nuttall told the
jury that Fagone was the sole person responsible for the murder that
he was so fiercely loyal that he killed Tim Schuster because he blamed
him for Larissa's distress through the rancorous divorce.
The defense attorney described Larissa as a
hard-working woman and a loving mother, whose 21-year marriage
disintegrated when her husband could not live up to her expectations.
Nuttall described Tim as an angry man who belittled Larissa in
over-compensation for his own failings as a husband and father.
Larissa's attorney said Tim would always leave the discipline of the
children up to his wife and then began stalking her after the divorce
According to the defense, Larissa had no idea that
Tim was dead at the time Clovis Police called her to the station for
the late-night interview. Her denials were truthful, Nuttall
continued, for it wasn't until she got home afterwards that she found
out what really happened.
When Larissa Schuster got home from the police
department, James Fagone was home babysitting Tyler. Schuster
allegedly told Fagone she thought Tim had just disappeared in an
attempt to ruin the vacation she and Tyler were planning to take the
next week. Fagone supposedly replied, "There's nothing to worry about.
We took care of that." Fagone went on to say that he had murdered Tim
Schuster and hid the body in the shed near Larissa's house. "It was
like a nightmare that you don't wake up from," Nuttall declared, "She
was scared, she was exhausted, she was shocked, to say the least."
Why didn't she call the police immediately? Nuttall
answered the obvious question by admitting she made a mistake by not
doing so. Instead, she told Fagone to move the barrel to CCRL. The
reason, Nuttall claimed, that she helped conspire to keep Tim's murder
a secret was that she didn't want her son to find out his father was
dead and ruin his vacation. Even her attorney had to concede: "That's
not what she should have been thinking."
The defense's case, continued
Having put forth a plausible narrative that
absolved his client of the most serious crime, the murder of Tim
Schuster, defense attorney Roger Nuttall called a string of witnesses
and experts to deflect blame from Larissa Schuster.
The defense took on the prosecution's assertion
that Tim's death would be more profitable to Larissa than their
impending divorce settlement. Tim Schuster's life insurance policy was
only $30,000 and half of their assets were to be put in a family trust
to provide for the children. However, Tim's death precluded a divorce
fight in which Larissa stood to lose half of their marital estate
including the lab business (once valued at $489,000, but sold in 2003
for $225,000) and the home in Clovis (sold in 2004 for $675,000).
A medical expert testified that Tim Schuster's body
had been cut in half and only his lower half had been placed in the
drum of acid. Nuttall used this line of questioning to imply to the
jury that there was another crime scene the police missed altogether
and that such undiscovered clues pointed to Fagone (and possibly other
associates) as Tim's actual killers. The defense called several
character witnesses to portray Larissa Schuster as a good mother and
non-violent person and other witnesses would describe Fagone as
something of a wildcard who often joked about committing strange
Nuttall also called psychiatrist Stephen Estner,
who expounded upon his opinion that Larissa Schuster suffered from
battered spouse syndrome caused by Tim's passive-aggressive behavior
and by a previous abusive relationship. Estner recalled that in his
jailhouse interviews with Larissa she spoke incessantly about how Tim
had done her wrong: she expressed unhappiness about their relationship
"as if he was still alive." To Estner, this indicated lingering signs
of battered spouse syndrome. Estner explained that Larissa Schuster's
mental health had worsened in the later years of the marriage, leading
her to take anti-depressants. Estner described Tim and Larissa's
personalities as diametrically opposite, leading to terrible strain:
"My impression was that Mrs. Schuster was a very direct and assertive
person, and Mr. Schuster was a more passive and nurturing personality.
And I think they started butting heads over that."
Larissa take the stand
Jurors had the opportunity to judge Larissa
Schuster's credibility for themselves when she took the stand in her
own defense. All in all, she would spend roughly five days on the
witness stand trying to convince the jury that Fagone had acted alone
in the killing of Tim Schuster.
Larissa flatly denied the murder charge: "No, I did
not kill my husband." She testified that she couldn't believe her ears
when Fagone had confessed the murder to her on July 12: "I heard him
say something like 'there had been an accident and Tim is dead.' I
thought he was joking." She said that she had not asked him about
specifics or report him to police because she had not wanted it to
interrupt her scheduled family vacation to Missouri and then
Disneyworld. She admitted helping Fagone move the body off her
As for the $2,000 payment to Fagone, Larissa said
it had been for babysitting Tyler and housesitting while she was away.
When confronted with the profane voice mails and her overall treatment
of Tim, Larissa sobbed at times and said she regretted being so mean
to her husband she wished she could take some things back: "It is
something I'm really ashamed about. You have to realize that is
something... a result of many accumulative things."
Through several days of tough cross-examination,
Larissa stuck to her contention that she never solicited Fagone to
kill her estranged husband. The reason CCRL had ordered so much acid,
she maintained, was that it had been needed to clean a large order of
Was her testimony enough to sway the jury? A
strange courtroom twist would suggest that it might be.
While Larissa Schuster was on the stand, one juror
made news on her own. Juror #5, a woman, was seen by court staff and a
cameraman giving Larissa a thumbs-up sign in court. Prosecutor Dennis
Peterson moved to have the juror removed from the case over the
defenses objection. Judge Ellison questioned the juror about her
actions, and the juror stated she simply wanted to let Larissa
Schuster know she had a done a great job under difficult
circumstances. However, Juror #5 insisted to the judge she had not
formulated an opinion as to Schusters guilt or innocence. Ultimately,
Judge Ellison allowed her to stay on the jury.
Shortly before closing arguments, complaints arose
about another juror. Members of the jury sent word to Judge Ellison
that one particular juror had stated that she didnt believe some
testimony; that she would come late and was often disruptive. Judge
Ellison ended up dismissing the juror in question without giving her a
chance to defend herself.
On December 12, 2007, after more than two days of
deliberation, the jury came back with its verdict: Larissa Schuster
was guilty of first-degree murder with a special circumstance of
financial gain. While the defendant looked on, seemingly emotionless,
Larissa's mother, Dee Ann Foreman, sobbed loudly. Tim's mother,
Shirley Schuster, dabbed tears of relief before breaking into a smile.
Shirley told reporters "I know my family is smiling right now as well
as Tim." Shirley also reported she had called Kristin with the news
and that Larissa and Tim's only daughter replied: "Hallelujah."
Larissa's conviction came a year to the day after James Fagone's.
After trial, Larissa's attorney Roger Nuttall
delayed the sentencing several times while investigating potential
problems with the jury. Nuttall submitted a motion for new trial
positing that Judge Ellison had made a reversible error when he had
removed the juror days before closing arguments. Nuttall requested
that Judge Ellison contact the jurors and ask them if they would speak
to the defense for purposes of fleshing out his appeal, but Ellison
refused. Nuttall appealed that decision, and ultimately the California
5thDistrict Court of Appeals ordered Ellison to contact the jurors on
the defense's behalf, but every juror and alternate opted not to meet
with Nuttall. Even with that huge setback, Nuttall soldiered on with
his motion accusing the jurors of discussing the case before
deliberations had begun. Speaking about the jury's refusal to
cooperate, Nuttall told reporters, "That certainly limits the extent
of the investigation we've done. But it doesn't destroy the argument
because what we already know suggests that there was juror
An emotional sentencing
On May 16, 2008, Larissa Schuster was given the
mandatory sentence of life in prison with no possibility of parole. At
that time, Judge Ellison rejected her appeal for a new trial as well.
Larissa is currently serving her sentence at the women's prison in
When Kristin walked into the courtroom to see her
mother sentenced for her father's murder, it had been 5 years since
the two had seen each other face-to-face. Kristin gave an angry
statement, calling her mother "a demon" for taking away the father
with whom Kristin had begun to reconcile with in the months before the
killing: "I pray you're continually haunted at night by the sight and
sound of my father fighting for his last breathing moments on this
earth. I hope you toss and turn and have horrible nightmares
visualizing the horrific act of violence you have committed."
Tim's mother Shirley Schuster also gave a
victim-impact statement recounting the terror he endured being
attacked and drenched in acid by the woman he once loved: "I can't
even imagine his last hours and the pain he must have gone through.
How I wish I could have been there to help him with his pain."
Seven people stood up in court to denounce Larissa
for her crimes, but she never showed emotion or made a statement on
her own behalf. Her attorney Roger Nuttall summarized her state of
mind for the media after the hearing: "I'm not going to say she's up
or down. She's accepting what she knew would happen today."
The couple's only son Tyler now lives with his
maternal grandparents, Dee Ann and Charles Schuster. Kristin says the
grandparents restrict her communication with her brother: "I don't
know if he knows the full story," she told a reporter. Now married,
Kristin has a young son who will one day ask about his grandparents.
Kristin plans to tell him that his grandpa is in heaven. It is less
clear what she plans to tell Aadon about Larissa; at the sentencing
hearing she closed the door on her mother: "Maybe later in life I can
learn to forgive you, but I doubt it. This is goodbye, not just for
now, but forever. This is goodbye as your daughter."
Court of Appeal, Fifth District, California
The People v. Larissa Schuster
THE PEOPLE, Plaintiff and Respondent,
LARISSA SCHUSTER, Defendant and Appellant.
February 28, 2011
Jerome P. Wallingford, under appointment by the
Court of Appeal, for Defendant and Appellant.Edmund G. Brown, Jr., and
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman, Janet E. Neeley, and William K. Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
A jury convicted Larissa Schuster of first degree
murder of her husband, Timothy, which was carried out for financial
gain (Pen.Code,1 §§ 187, subd. (a), 190.2, subd. (a)(1)). She was
sentenced to life in prison without the possibility of parole. She
raises various claims of error. We will affirm the judgment.2
FACTUAL AND PROCEDURAL SUMMARY
As of early 2002, Schuster resided in Clovis with
her husband and their son, T. Their daughter either had been sent, or
soon would be sent, to live with Schuster's parents in Missouri.
Schuster owned a business, Central California Research Laboratories
(CCRL), in Fresno. Timothy was a manager in the cardiology
department at Saint Agnes Medical Center (Saint Agnes).
Schuster and Timothy separated acrimoniously in
2002. For a while, they maintained separate living quarters in the
family residence. Schuster complained about this arrangement. From
the time of the separation on, Schuster also acted as if the house and
business were hers, and she did not want Timothy to have custody of
T., or a relationship with him. She often said that she would like
to see Timothy dead.
Around July 4, 2002, Timothy moved out of the house
and into a condominium. Schuster was enraged that he left and took
items from the house while she was on a trip. At one point, Schuster
told a neighbor that she sometimes thought she should just kill
Timothy and be done with it. She twice asked someone who came to her
house to work on a barbecue if he would help her enter Timothy's
residence and retrieve some property.
On August 8, 2002, Schuster had Leslie Fichera, a
chemist at CCRL, rent a storage unit at Security Public Storage, which
was a couple miles from the lab. Schuster said she wanted to store
some things that she wished to keep hidden from Timothy. Fichera
rented unit A-182 in her own name, then turned the entry code and
instructions over to Schuster.
On August 10, 2002, Timothy returned home from a
trip to find his residence ransacked and items he had shared with
Schuster gone. Also missing was a report he had been using to
document his involvement with T. for custody purposes. Schuster
subsequently admitted to various people that she and Fagone were
Schuster laughed about it. She told her manicurist that she had
gone back a couple of times because it gave her a feeling “better than
sex” to sit in a chair and see what she had done to the place. She
also said she keyed Timothy's pickup, and that it was like a trophy
and gave her a happy feeling every time she saw the key mark on the
side of the truck.
After the break-in, the couple's relationship
deteriorated further. Timothy moved to a house in Clovis that was
equipped with an alarm system and motion sensors. He expressed
concern about Schuster and obtained a handgun and concealed weapon
Schuster told her manicurist that she prayed every
night that Timothy would die. She asked Fichera if Fichera's
boyfriend knew anyone who could rough up somebody. Schuster told a
fellow member of her church choir that she would do everything in her
power to keep Timothy from getting the business. She asked the
barbecue repairman if he would go to Timothy's house, stun him to the
ground with a stun gun when he answered the door, and then flag her
down, where she would be waiting a couple of houses away.
On April 30, 2003,4
a blue 55-gallon barrel was purchased and sent to CCRL, although it
was not the type of barrel the lab normally used. Schuster said it
was for yard clippings, although she asked a lab employee if he
thought a body would fit in it. A couple of times, Schuster told
this same employee that if she could kill Timothy and get away with
it, she would, and she once asked if the employee knew anyone who
would rough up Timothy or kill him. The employee took these various
remarks as jokes.
Although CCRL had hydrochloric, sulfuric, and
acetic acid on hand, very little was used. In Fichera's experience,
probably no more than one bottle of hydrochloric acid would be used in
an entire year. Between June 13 and July 2, however, CCRL purchased,
through orders placed by Schuster, three cases of hydrochloric acid
and one case of sulfuric acid. Each case contained six 2.5-liter
In June, Schuster told her manicurist that she
could kill Timothy and get away with it, and that she knew people who
could do it. That same month, a neighbor saw Schuster moving a blue
barrel to the side of her garage.
Around July 9, Timothy and his good friend and
coworker, Mary Solis, lost their jobs at Saint Agnes. Schuster
laughed when she heard the news. On the evening of July 9, Timothy
had dinner with Mary and Bob Solis and Victor Uribe, Jr. The Solises
arranged to meet Timothy the next morning, and he left their home
around 10:00 p.m. He, however, did not meet them the next morning or
show up for his scheduled exit interview at the hospital.
Uribe went by Timothy's house; Timothy's pickup
was in the garage, but no one answered the door. The police were
summoned. A cursory search of the house revealed nothing overtly
suspicious. Although there were no signs of forced entry or a
struggle, the Solises' concern grew upon learning Timothy was not in
the house, but his cell phone was on the dresser. Timothy would not
be late to something as important as the exit interview, and he always
carried his cell phone in case his children needed him.
Nevertheless, the Solises were told they had to wait 24 hours to file
a missing person report.
Around this same time, a CCRL employee noticed the
blue barrel was gone. He also noticed a bottle of chloroform on top
of the acid cabinet. When he asked, Schuster confirmed it was what
doctors used to soak rags in to knock people out.
When Schuster arrived at work on Thursday morning,
July 10, she was complaining about her shoulder. She said she had
hurt it by working out earlier that week. That evening, Timothy did
not show up for the scheduled exchange of custody of T. Schuster told
her manicurist that she had a feeling the divorce was finally going to
go her way.
The next morning, Friday, July 11, Robert Solis
filed a missing person report with the Clovis Police Department. In
response, Officer John Willow went to Timothy's house. He found a
gun underneath a cushion on a chair near the front door. Locating a
cell phone in the bedroom, he called every number to see if anyone had
had contact with Timothy. When he contacted Schuster that afternoon,
she said she had not heard from Timothy. After Willow had contact
with Schuster's manicurist, who provided information regarding the
volatile divorce that was pending, the matter was turned over to
detectives for further investigation.
When Detectives Vincent Weibert and Larry Kirkhart
entered Timothy's house later that afternoon, they found some damage
to the “pony wall” behind the chair on which the gun was found, as if
the chair had been forcibly pushed into the wall. Inside a briefcase
in the same room was a microcassette recorder and tape.5
The caller ID record for the telephone in the master bedroom showed
only one call received, at 2:02 a.m. The call was from Schuster's cell
phone number. Kirkhart subsequently arranged for Schuster to come to
the police department to speak with the detectives. She was
accompanied by a friend.
During the interview conducted by Kirkhart and
Weibert, Schuster related that she and Timothy were going through a
divorce and had a difficult time communicating verbally.6
They sometimes went for three weeks without talking or exchanging
e-mails. Schuster stated that the last message she got from Timothy
was on Tuesday the 8th, and it said he was planning to pick up T. at
6:00 p.m. on Thursday. When Timothy did not show, Schuster and T.
both tried unsuccessfully to contact him. Schuster noted that she
was leaving with T. on Sunday morning for a two-week vacation, and
Timothy always gave her trouble whenever she wanted an extra day.
Schuster related that she learned that Thursday
evening about Timothy losing his job. Concerned, she called him
again around 8:30 p.m. and left a message asking him to call. The
last time she called Timothy that night was around 10:30 p.m. She
drove by his house and knocked on the door at about 10:30 or 10:45
p.m., after which she did not try to contact him further at his home
or by telephone. Schuster related that she last saw Timothy in
person on Saturday, July 5, and spoke to him last about a month or two
When asked where she was on Wednesday, the last day
the Solises saw Timothy, Schuster replied that she had worked all day.
As her shoulder was bothering her, she and T. watched a Weird Al
Yankovic movie that evening. She fell asleep on the couch. When
she awoke, it looked like her cell phone had been dialed, and she
thought she must have rolled over and hit a button or something.
Asked if she had Timothy's number on speed dial, Schuster said she
thought so. Schuster denied talking to Timothy or calling him
intentionally. Weibert asked if her cell phone was handy, but she
said it was at home.
Weibert then informed Schuster that the last
incoming call at Timothy's house was from her cell phone number. He
suggested that if she had some conversation with Timothy about child
custody or money, that, together with his losing his job, might have
been enough to push him over the edge. Schuster insisted that she
had no information and did not have a conversation with him.
After a discussion concerning whether Schuster had
someone to help her through this and whether the police chaplain might
help, Kirkhart offered to give Schuster a ride home. She responded
that she had her car. Kirkhart then offered her water and left the
room to get it for her. Weibert also left the room.
Weibert thought Schuster's story of accidentally
making the telephone call while asleep was unusual, as was her
statement that she had not brought her phone. He went to speak with
the friend who had accompanied Schuster, but found no one. The only
vehicle parked in front of the police department was Schuster's Lexus.
Looking through the car window, Weibert saw a cell phone on the
center console. When he called Schuster's number, the cell phone
rang. Weibert informed Kirkhart.
Kirkhart told Schuster about finding her cell phone
and asked if he could confirm her story about the speed dial. She
agreed and accompanied detectives to the car. At her request, she
was allowed to retrieve the phone. Walking back to the interview
room, however, she appeared nervous. Her hands were shaking and she
was trying to manipulate the phone. Concerned that she might try to
change some of its contents, Weibert asked if he could see it.
Schuster handed it to him.
Back in the interview room, Weibert determined that
none of the speed dial numbers belonged to Timothy. Schuster asked
for water; the detectives left the room but monitored her from
another location. She apparently retrieved her messages.
When Weibert returned, Schuster claimed that she
had found Timothy's number under T.'s name, but had accidentally just
deleted it. Later, however, she admitted that she had made the call
to Timothy's house. She explained that she just wanted to make sure
there would be no trouble on Saturday, because she was afraid Timothy
would not return T. from visitation in time for the trip. Schuster
said Timothy was kind of asleep, and she estimated the call was less
than 30 seconds long. Schuster said she had made a mistake by not
telling the detectives, denied being deceitful about anything else,
and stated she did not know what could have happened between the time
of the phone call and the time of Timothy's appointment. After
further discussion about a church Schuster and Weibert had both
attended, how the detectives could reach Schuster while she was out of
town, and how she had been praying for Timothy, arrangements were made
for Schuster to bring Kirkhart a notebook she discovered that Timothy
had been keeping about her. The interview then ended.
The next morning, Tami Belshay, who had accompanied
Schuster to the police department, went to Schuster's house.
Schuster was upset that the police had caught her in a lie and worried
that they might tap her phones or put a tracking device on her car.
She said that if they did, they would know she went to the lab at
about 2:00 or 3:00 that morning. Schuster said she had gone to put
on a sample run for Fichera.
When Belshay informed Schuster that the police
could get search warrants for the lab and her home even though
Schuster would be on vacation, Schuster asked Belshay to stay while
she went to Fagone's and got T.'s bicycle. When she got there, she
told Anthony Fagone, Fagone's father, that she had come to talk to
Mrs. Fagone about some baskets she had ordered. Told Mrs. Fagone was
not home, Schuster insisted that she wanted to talk to Fagone and
almost tried to force her way in before getting the bicycle and
When Schuster returned home, Belshay remarked that
the police would take Schuster's computers and that anything deleted
would still be on the hard drives. Shortly after, Schuster asked
Belshay to watch T. while Schuster went to the lab to pay some bills.
She seemed harried and frantic. Belshay stayed at Schuster's house
until 2:20 p.m. Sometime between noon and 2:00 p.m., Fagone came by.
He walked in without knocking or ringing the bell, went upstairs, came
back down very quickly, and then left. He did not respond when
Belshay spoke to him, and he looked pale and sick.
After going to the lab, Schuster contacted Fichera
and asked for help finding a truck with a lift gate. Schuster said
she needed it to loan a rototiller to a friend. Ultimately, they
went to the U-Haul location on Blackstone between Bullard and Sierra,
and Fichera rented a truck in her own name. They left the U-Haul
location separately, with Fichera driving the rental truck.
Schuster met with Kirkhart at approximately 4:00
p.m. at Herndon and Blackstone to give him Timothy's notebook. She
was under surveillance at the time. She drove home at a high rate of
speed. Once there, Fagone arrived with T. Schuster then left, again
driving so fast that surveillance had to be terminated for safety
Schuster picked up the rental truck from Fichera.
Schuster was in a rush. About 50 minutes later, she called Fichera
and told her to meet her at the U-Haul place. Security Public
Storage records showed an entry into and exit from unit A-182 during
the time Schuster had the rental truck. No other entry was made into
that unit between July 9 and 14.
At the U-Haul place, Fichera observed that Schuster
was thirsty and dirty, had scrapes on her shins, and had blood on her
shoe from what Schuster said was a smashed toe incurred while loading
the rototiller. Fichera also noticed that the truck's hand dolly had
been used and that only 15 miles had been put on the truck. Schuster
could not have driven the truck from Fichera's residence to Clovis and
back and had it register only 15 miles.
Schuster and T. left on their trip on Sunday
morning, July 13. She told an acquaintance coincidentally on the
same flight that she had gone to the lab early that morning because
she had forgotten something. On Monday, July 14, Fichera found an
envelope on her desk at the lab, on which Schuster had written
“ ‘thanks.’ ” Inside was a check, dated July 8 and signed by
Schuster, in the amount of $510.25. The memo portion indicated it
was reimbursement for travel and lodging, but the only money Schuster
owed Fichera was approximately $40 for the rental truck.
Fichera and Belshay went to the police on July 14.
That evening Kirkhart obtained search warrants for the storage unit,
the lab, and Schuster's house.
Inside the storage unit was a blue 55-gallon barrel
that contained human remains. They were subsequently identified,
through DNA testing, as those of Timothy. Only the lower half of the
body remained; it had been placed into the barrel head down and was
floating in fluid that contained hydrochloric acid. The body was in
a state of early decomposition, with the time of death possibly being
July 9 through 11. Tissue samples tested positive for chloroform, an
anesthetic type of substance that can cause rapid loss of
consciousness and incapacitation.
The cause of death was the probable combined
effects of acute chloroform exposure and hydrochloric acid immersion,
although it was very possible that death resulted solely from the
chloroform. It could not be determined whether Timothy was alive
when he was placed in the barrel.
A can of Lysol air freshener was found on a
refrigerator inside CCRL. Such a product would not be used in the lab
for fear of contaminating the analyses being performed. Toward the
bottom of the dumpster in a locked enclosure behind the lab was a case
of six empty bottles of hydrochloric acid. Forensic analysis of
Schuster's office computer showed that on June 13, Internet searches
were conducted for the terms “ ‘acid digestion tissues,’ ” “ ‘acid
digestion animal tissues,’ ” and “ ‘sulfuric acid.’ ”
Schuster was arrested on July 16. In her
possession were two receipts from a store about halfway between CCRL
and Security Public Storage. Both showed purchases made just after
7:30 p.m. on Saturday, July 12, including Lysol and other air
fresheners. Also in Schuster's possession was a card with the
storage facility entry instructions and a code number.
The thrust of Schuster's defense was that Fagone
The manager of Security Public Storage told a
defense investigator that she saw a U-Haul truck drive in on Saturday,
July 18. She was positive it contained two males. The driver was
in his early 20's; the passenger was younger and had a skimpy beard.
When she checked the dumpster later that day, she smelled the same
smell as when the storage unit was first opened by the police. She
believed the smell was coming from a black plastic garbage bag that
she thought contained body parts and that she felt had come from the
Dr. Paul Herrmann, a medical doctor specializing in
forensic pathology, reviewed various materials and photographs in
connection with this case. In his opinion, Timothy's body was cut in
half before it was immersed in acid, and the other half was not
dissolved in the barrel. Herrmann questioned the completeness of the
police investigation, particularly the lack of forensic evaluation to
determine if there was blood residue at Schuster's or Timothy's
A couple of months before Fagone's arrest, he told
a friend that someone wanted him to chloroform her husband and rob
him. He never implied, however, that Schuster wanted him to kill her
husband. Fagone also took this friend to the Tower District to show
him a house he had rented. He said Schuster had helped him obtain
the house and was going to pay for his rent.
In May or June, Fagone asked another friend to go
up to Timothy's door, knock, and then taser Timothy in the neck.
Fagone wanted to knock Timothy out and tie him up so that he could rob
him. Although Fagone said Schuster was paying him to do this, he
never said she wanted him to kill Timothy.
Matthew Crowder, another of Fagone's friends,
recalled Fagone joking about chloroforming someone or disposing of
someone in a barrel of acid. These were running jokes within the
group of friends. Although Fagone never said anything about Schuster
wanting to hurt her husband, he said Schuster was upset because her
husband was taking all her money and property. Fagone also was upset
because he was siding with Schuster. In June, Fagone was injured in
a motorcycle accident. In light of his physical condition, Crowder
did not believe he could personally subdue a person such as Timothy.
In Crowder's opinion, Timothy was fairly passive and nonviolent and
easily could be led by people he felt had more power and prestige.
Fagone said Schuster was a powerful person with the money and means to
be able to do stuff.
Dr. Stephen Estner, a forensic psychiatrist, opined
that Schuster manifested battered spouse syndrome (BSS) in the context
of this case. He concluded she was “traumatized to an enormous
degree,” and that there was emotional abuse that caused physical
Schuster testified and denied killing Timothy, whom
she married in 1982. She detailed the early, happy days of their
marriage, followed by the deterioration of their relationship and her
ultimate decision to file for divorce in 2002. She also described
heart palpitations and other physical symptoms she suffered due to
stress, as well as her feelings about, and response to, Timothy's
moving out of the family home while she was gone and taking community
property when a property division had not been decided. She admitted
she broke into his home and took things in August of 2002 out of
retaliation, although she denied keying his truck. She also related
how Timothy attempted to use the child custody order against her on a
number of occasions.
Timothy first introduced Schuster to Fagone's
parents in 2001 or 2002. Fagone went to work for Schuster at CCRL
and later became T.'s babysitter. He also did things in and around
the house for her, so he had a key. Schuster trusted him, and she
paid him for his work.
Schuster admitted talking to a number of people
concerning how she felt about Timothy. When she said that she wished
he were dead and similar things, she did not mean it literally. She
also vented about the situation to Fagone, as venting was her escape
from the enormous pressures she was under at the time.
In 2003, she was concerned most about Timothy's
threat to try to get sole custody of T. Timothy also had demanded $1
million for his half of the business. These subjects were discussed
when Schuster vented to Fagone and others. As of July 9, Fagone had
not expressed to Schuster any hostility toward Timothy.
Around June, Schuster made plans to take T. on a
long vacation trip to Texas, Florida, and Missouri. They were
scheduled to be gone for approximately two weeks beginning July 13.
The trip was extremely important to both of them. It was a dream
vacation for T. The custody agreement gave Schuster the right to two
weeks of vacation every summer, but she expected Timothy to try to
undermine the trip at the last minute.
On July 9, Schuster received a telephone call from
her attorney's office asking her to stop by the next day to sign a
stipulation and order concerning her vacation period with T. Schuster
had had no idea Timothy's attorney was going to prepare something, but
it made her feel like things would be okay with the trip. She was
still worried, however, that Timothy would not bring T. back from
visitation in time for them to make their 6:30 a.m. flight on July 13.
July 9 was a normal workday for Schuster. That
evening Fagone came over and they all watched a Weird Al Yankovic
movie. Fagone left sometime after midnight.
Schuster placed a call to Timothy around 2:00 a.m.
on July 10. She called because she still was upset about the
stipulation and order. She wanted to make sure Timothy did not have
anything “up his sleeve” and that T. was going to be back in her
custody so they could get on the plane Sunday morning. Timothy and
Schuster had a very brief conversation. Schuster initially forgot
about making this call when she was interviewed by the police; when
she remembered, she was dishonest because she feared the police would
detain her and make her a suspect. This was within 24 hours of
leaving on the trip, and she knew she could not, under any
circumstances, deny her son that vacation.9
On Thursday, July 10, Schuster went to her
attorney's office to sign the stipulation and then on to work.
Fagone was with T. most of the day. Schuster had a standing
appointment to get her nails done every Thursday at 5:30 p.m. T. went
with her to the nail appointment, but Timothy failed to pick him up at
the nail salon as per the standing visitation arrangement. As
Schuster and T. were leaving the salon, Schuster ran into a friend who
told her that Timothy and Mary Solis had lost their jobs at Saint
Agnes earlier that week. This came as a shock to Schuster. She and
T. both made a number of calls to Timothy's home and cell phone,
trying to find out what was going on. Schuster went by Timothy's
house between 10:30 and 11:00 p.m., even though she felt uncomfortable
doing so given that they were not getting along well.
Friday, July 11, was another workday for Schuster.
She heard nothing with regard to Timothy's whereabouts. She was
concerned and did not know what was going on or whether he was trying
to undermine the trip. She was focusing on T. and his trip and
trying to do everything possible to make sure he was not going to be
At some point that day, Schuster was asked to talk
with members of the Clovis Police Department. She agreed to do so.
She arrived at the police station around 10:00 p.m., after she had
made arrangements to have Fagone look after T. She did not leave the
police station until between 1:00 and 2:00 a.m. She was physically
exhausted. Emotionally, she was very upset. She was angry because
she thought this could be something Timothy was trying to do to
undermine the vacation and that she was not going to be able to go
with T. She also was scared that, if this was a disappearance as the
police said, they were going to detain her and keep her from going on
When Schuster got home, she believed T. was in bed,
asleep. Fagone was there, and she told him what took place at the
police department and how she felt they were trying to make her a
suspect and about her anger that the trip might be jeopardized.
Fagone was talking at the same time she was ranting and venting, and
she heard him say something like there had been an accident and
Timothy was dead and that “they” had killed him. She thought it was
a sick joke, then realized she had heard correctly. When Fagone said
Timothy's body had been stashed in her garden shed on the side of her
house, she became almost hysterical. She considered reporting it to
the authorities, but she was not thinking logically. She told Fagone
that he had to move the body now, and she did not care how he did it.
She believed Fagone left shortly after.
Schuster received a telephone call from Belshay
early on the morning of July 12. Belshay then came to the house.
While Belshay was there, Schuster went to the home of Fagone's
parents, which was nearby, and retrieved T.'s bicycle. She also
wanted to make sure Fagone had taken the body out of her shed.
Fagone told Schuster that he had put the body in a barrel in the
warehouse section of her lab. Schuster considered notifying the
police, but feared she would be prevented from going on the trip. In
hindsight, she knew she made some bad decisions, but she was
overwhelmed at the time.
Schuster told Fagone that the barrel could not stay
at the business. He said the only way he could move it was if she
helped him get a truck with a lift gate. She agreed to try.
Frantic, she called Fichera for help. They eventually obtained a
rental truck, which Schuster picked up from Fichera after giving
Kirkhart Timothy's journal and going home briefly.
Schuster drove the truck to the lab, where Fagone
was waiting with a couple of other individuals. Schuster and Fagone
went into the warehouse, and she cleared a pathway so he and his
companions could get the barrel out of there. She then went to her
office and did other things. Fagone had mentioned that he did not
know where to take the barrel, so Schuster suggested temporarily
taking it to her storage unit. She made him promise, however, that
he would take care of moving it somewhere it could not be found. He
assured her that he would do that.
When the truck left for the storage facility,
Schuster followed in Fagone's car and waited near the facility. The
truck came out of the storage facility, Schuster and Fagone traded
vehicles, and she went directly to the U-Haul center. Fichera met
her there. At some point, Schuster stopped at a store to get some
cleaning supplies and air freshener, as she had noticed an odor from
the barrel in the warehouse area of the lab.
When Schuster returned home, T. was there.
Schuster said nothing to him about his father. She knew she would
have to be accountable at some point, but was just thinking a day at a
Schuster denied purchasing large quantities of acid
in the spring of 2003 in order to dispose of Timothy's body.
Instead, they were for an exhaustive project that had to be done
occasionally involving cleaning all of the glassware in the lab.
Schuster ran the Internet searches because she was looking for
information on which acids would remove inorganic and organic
Schuster denied purchasing the blue barrel in order
to dispose of Timothy's body. She did not recall ordering it,
although she remembered it coming into the lab. She was surprised
that it was bigger than she thought she had ordered. One of her
employees, who knew the stress she was under from the divorce,
jokingly said he thought a body might fit in it. Schuster never took
After Schuster learned of Timothy's death, she
allowed T. to go with Fagone in Fagone's vehicle. Schuster felt she
probably was not making sound judgments that day, but Fagone had said
Timothy's death was an accident, and Schuster never believed he would
hurt T. The plan was for Fagone to take T. to a picnic and then meet
Schuster at the lab to move Timothy's body.
An abstract of judgment dated February 20, 2007,
showed Fagone was convicted of first degree murder and residential
burglary. He was sentenced to life in prison without the possibility
of parole. Fagone did not testify in Schuster's trial.
Schuster never solicited Fagone to talk to his
friends about robbing or chloroforming or using a stun gun on Timothy.
Fagone never told her that he purchased a stun gun from Herb Bauer's
Sporting Goods on June 20.11
She never directed Fagone to kill Timothy. She did not provide him
with chloroform. She did not recall ever discussing the substance or
its effects with him.12
She never told him that she would pay for the house he found in the
Tower District, although she gave him a $2,000 cash advance against
the work he did for her, such as watching T. and the house, so he
would be able to move in.
Schuster contends her conviction must be reversed
because of seven errors of omission or commission by the trial court.
She argues her statements to the police should have been suppressed
and the trial court should not have discharged a juror during the
trial. She also claims the trial court failed to instruct the jury
on the theories of accessory and BSS and to instruct the jury properly
on the theories of financial gain and reasonable doubt. Finally, she
asserts the cumulative effect of the claimed errors compels reversal.
I. Schuster's Statements to Police
Prior to trial, Schuster unsuccessfully sought to
suppress the statements she made to police in the interview of July 11
through 12 as having been taken in violation of Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda ).13
On appeal, she contends the interview became custodial when
detectives discovered her cell phone in her car; hence, Miranda
advisements should have been given at that point, and failure to do so
should have resulted in suppression of all evidence of statements and
events occurring after that point. We disagree.
The Trial Court Proceedings 14
At the hearing on the suppression motion, Weibert
testified that on the evening of July 11, he and Kirkhart were
investigating Timothy's disappearance. Timothy had been reported as
a missing person, and the detectives were trying to find out what had
happened to him. At that point, they did not know if he had left
town, become the victim of foul play, or possibly harmed himself.
The detectives wanted to talk to Schuster about
some of the things they had found in the search of Timothy's home.
Accordingly, Kirkhart contacted her by phone and made arrangements for
her to come down to the police department to speak to them. Weibert
initially understood Schuster had obtained a ride from someone, but
later determined she drove herself. She arrived at the police
department about 10:00 p.m. and was ushered into the interview room.
At no time was she advised of her Miranda rights.
At the time the detectives were conducting the
interview, they knew that the last phone call Timothy had received was
from Schuster's cell phone. When Schuster was asked to come to the
police station, she was not a suspect, however, because the detectives
did not know what had happened to Timothy. Their concern with the
last phone call was that Timothy might have said something to Schuster
that would shed light on where he could have gone or on his state of
During the interview, Schuster was asked
specifically whether she had brought her cell phone with her, and she
said she had not. When Weibert discovered the phone was in her car,
he believed it was possible Schuster had not been truthful about
bringing it, but she also could have forgotten.
Schuster and the two detectives walked outside.
Schuster unlocked her vehicle and retrieved the cell phone. The
detectives were speaking with her about it when her demeanor changed.
She began to appear nervous. Her hands began shaking and her voice
changed pitch. She began to open the cell phone and acted as if she
were going to manipulate it. Concerned that she might try to change
or delete entries in the phone, Weibert asked if he could see it and
she handed it to him. Weibert asked politely; he did not order or
Weibert began checking the speed dial numbers
programmed into Schuster's phone as the three were walking back to the
interview room, because of Schuster's statement that she had Timothy's
number on speed dial and had accidentally called him. He completed
his inspection while they were inside. He estimated that the entire
process of retrieving and checking the phone took no more than five to
10 minutes. During that time, Schuster never expressed a desire to
end the interview, nor did she ask Weibert to return the phone to her.
Eventually, Schuster admitted having made the call
and that what she previously told the detectives was not true. Prior
to that, Weibert remembered Schuster saying she was tired, but did not
recall her indicating a desire to leave. Schuster did say she had
taken some Vicodin that day and had no moisture in her mouth. Both
detectives encouraged her to speak with a chaplain concerning this
matter. Before she admitted making the phone call, Schuster asked if
the chaplain was coming in, was assured by Weibert that he would be
there soon, and asked for some water. The interview ended when the
police chaplain came into the room.
When Schuster admitted having made the phone call
and previously being untruthful with the detectives, Weibert still was
looking at the possibility that Schuster might have said something to
Timothy that evoked a response from him or that some foul play could
have befallen him and she might know something about it. To say
Schuster was a suspect when the detectives did not know they had a
crime “might be a little premature,” however.
Weibert believed that the chaplain spoke with
Schuster for a while. Weibert was not present and did not know how
much longer Schuster stayed at the police department. He believed
the interview lasted about two to two and a half hours. At no time
was Schuster in custody or not free to leave.
At the conclusion of the hearing, the trial court
found (1) Schuster's encounter with the police was consensual, (2) a
reasonable person in the same situation would have understood he or
she was free to go, and (3) Schuster understood she was free to go and
was going to leave when the interview was over. Because there was no
custodial interrogation, no Miranda warnings were required. The
trial court then ruled the statements were admissible in the
In Miranda, supra, 384 U.S. at page 444, the United
States Supreme Court held that “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against
self-incrimination․ Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or appointed.” 15
Schuster's claim that Miranda was violated rests on
her assertion that she was subjected to an unwarned custodial
interrogation from the point at which police discovered her cell phone
in her car. We assume, and the People do not dispute, that the
interview constituted “interrogation” within the meaning of Miranda.
(See Rhode Island v. Innis (1980) 446 U.S. 291, 301.)
“ ‘Absent “custodial interrogation,” Miranda simply
does not come into play.’ [Citation.]” (People v. Ochoa (1998) 19
Cal.4th 353, 401.) “[C]ustodial interrogation” means “questioning
initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his [or her] freedom of action
in any significant way.” (Miranda, supra, 384 U.S. at p. 444.)
“Whether a person is in custody is an objective test; the pertinent
inquiry is whether there was ‘ “ ‘a “formal arrest or restraint on
freedom of movement” of the degree associated with a formal
arrest.’ ” ' [Citation.]” (People v. Leonard (2007) 40 Cal.4th
1370, 1400.) “Two discrete inquires are essential to the
determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to terminate
the interrogation and leave.” (Thompson v. Keohane (1995) 516 U.S.
99, 112, fn. omitted.)
“In deciding the custody issue, the totality of
circumstances is relevant, and no one factor is dispositive.
[Citation.]” (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved
on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830,
fn. 1; see California v. Beheler (1983) 463 U.S. 1121, 1125.)
Important considerations include the site of the interrogation,
whether objective indicia of arrest were present, and the length and
form of the questioning. (People v. Boyer, supra, at p. 272.) What
matters are the objective circumstances of the interrogation, not the
subjective views harbored by the interrogating officers or the person
being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323.)
“Whether a defendant was in custody for Miranda
purposes is a mixed question of law and fact. [Citation.] When
reviewing a trial court's determination that a defendant did not
undergo custodial interrogation, an appellate court must ‘apply a
deferential substantial evidence standard’ [citation] to the trial
court's factual findings regarding the circumstances surrounding the
interrogation, and it must independently decide whether, given those
circumstances, ‘a reasonable person in [the] defendant's position
would have felt free to end the questioning and leave’ [citation].”
(People v. Leonard, supra, 40 Cal.4th at p. 1400; see People v.
Mayfield (1997) 14 Cal.4th 668, 733.)
We conclude, after independently considering the
totality of the circumstances, that a reasonable person in Schuster's
position would have felt free to terminate the interview and leave at
all times during questioning.
Schuster came voluntarily to the police station and
provided her own transportation, and no one suggested that she was, or
might be placed, under arrest. (Compare Yarborough v. Alvarado (2004)
541 U.S. 652, 664, Oregon v. Mathiason (1977) 429 U.S. 492, 495 and
People v. Stansbury, supra, 9 Cal.4th at pp. 831-832 with People v.
Esqueda (1993) 17 Cal.App.4th 1450, 1481.) The interview having
occurred at the police department does not, without more, render it
custodial. (California v. Beheler, supra, 463 U.S. at p. 1125;
People v. Stansbury, supra, at p. 833; People v. Boyer, supra, 48
Cal.3d at p. 272.) The video of the interview shows that when both
detectives were present, Schuster was seated in a corner of the
interview room with one detective sitting to either side, forming a
sort of triangle. Neither detective ever was positioned between
Schuster and the door or in such a way as to make her feel hemmed in.
Of course, “[i]f an individual voluntarily comes to
the police station ․ and, once there, the circumstances become such
that a reasonable person would not feel free to leave, the
interrogation can become custodial.” (United States v. Kim (9th
Cir.2002) 292 F.3d 969, 975.) Here, however, although the detectives
never told Schuster she was free to leave, they implied this was so
even after her cell phone was discovered in the car by telling her
that the chaplain was on the way.
The chaplain was not used as a ruse to keep
Schuster talking; she was asked if she wanted to speak to him and, if
so, whether she wanted to do it that night and at home or at the
police station. The decision to speak to him that night at the
station, although made before she was told her cell phone had been
discovered, was hers alone. Also, after Weibert went through the
numbers programmed into the speed dial positions on the phone,
Schuster was left alone to make calls or retrieve her messages,
further indications that she was not in custody. (Compare People v.
Leonard, supra, 40 Cal.4th at p. 1401 with People v. Esqueda, supra,
17 Cal.App.4th at p. 1481.)
Significantly, even after Schuster's deception came
to light, the detectives remained polite and their tones of voice were
conversational rather than accusatory. Even when Weibert expressed
skepticism about Schuster's story that she accidentally dialed
Timothy's number in her sleep, his tone was not harsh or intimidating.
Rather than expressly accusing Schuster of lying,
Weibert suggested she had made a mistake and it would be worse if she
lied about it. He did not threaten her with arrest and prosecution,
but rather urged her to tell the truth, especially for T.'s benefit.
(See Yarborough v. Alvarado, supra, 541 U.S. at p. 664.) He did not
suggest that her deception had made her a suspect, but instead
explained that he wanted to know the reason behind the call, and that
maybe she said something to Timothy that was taken the wrong way.
His tone was persuasive rather than demanding or insistent.
Although Weibert asked very specific questions once
Schuster admitted making the call, his tone never grew stern or
accusatory. When Schuster explained why she initially denied making
the call, Weibert asked whether she had been deceitful about anything
else, but appeared to accept her explanation of why she had been
untruthful, as well as her assurance that she had not been untruthful
about anything else. He then proceeded to ask, in a conversational
manner, what she thought might have happened, whether she heard
anything in the background during the call, and how Timothy sounded.
When Schuster said she was tired, Weibert assured her that they would
get her out of there in just a second, but they were still waiting for
the chaplain to show up.
That police catch an interviewee in a lie and
pointedly question him or her about the deception does not, in our
view, transform a noncustodial encounter into custodial interrogation.
This is especially true here, where the overall tone of the
interview never changed, and there was nothing in the detectives'
questions or demeanors to suggest they suspected Schuster of a crime
or that she was no longer free to leave. That the discovery of
Schuster's deception may have resulted in a prolongation of the
interview is not dispositive, nor is the length of the encounter.
(See Yarborough v. Alvarado, supra, 541 U.S. at p. 665.) 16
None of the detectives' comments conveyed to
Schuster that she was a suspect in a crime, although it was one
scenario they had to consider. The detectives did not know that any
sort of crime had been committed, even though their affidavit for the
search warrant for Timothy's house stated there was sufficient motive
present for foul play to befall Timothy at the hands of Schuster or
someone looking out for her. They made it clear to Schuster that
they did not know what had happened and were exploring several
possibilities. “[A] police officer's subjective view that the
individual under questioning is a suspect, if undisclosed, does not
bear on the question whether the individual is in custody for purposes
of Miranda. [Citation.]” (Stansbury v. California, supra, 511 U.S.
at p. 324.)
Schuster argues that once she was caught in a lie
about something that clearly was important to the police, neither she
nor a reasonable person would have believed she was still free to
leave. We disagree. The detectives gave the clear impression they
were accepting her explanations, both as to the circumstances under
which she made the phone call and why she initially was untruthful.
Moreover, Schuster clearly knew she was free to leave, otherwise she
would not have mentioned that she was going out of town soon and then
made arrangements for how the detectives could get in touch with her.
That she verified she did not have to wait for the detectives to
return once she and the chaplain were finished does not change this
or, more importantly, what a reasonable person in her position would
have believed. Significantly, Schuster was allowed to leave the
station-indeed, the state-without hindrance following the interview.
(See Oregon v. Mathiason, supra, 429 U.S. at p. 495; People v.
Leonard, supra, 40 Cal.4th at p. 1401.)
Schuster relies in part on People v. Aguilera
(1996) 51 Cal.App.4th 1151 as support for her claim of custodial
interrogation. Aguilera does not help her. There, one of the
interrogating officers initially said the defendant was not in
custody, but the officer then explained that the interview would end
and they would take the defendant home after he told them the truth.
The officers repeatedly rejected the defendant's story, and told him
that he would not be allowed to leave if they had to interview an
alleged alibi witness. (Id. at pp. 1163-1164.) Moreover, the
“ ‘tag-team’ interrogation” was “intense, persistent, aggressive,
confrontational, accusatory, and, at times, threatening and
intimidating.” (Id. at pp. 1164-1165.) These factors distinguish
Aguilera from the circumstances of Schuster's interview.
We believe People v. Spears (1991) 228 Cal.App.3d 1
(Spears ) to be more persuasive. There, the appellate court
concluded there was no custodial interrogation. The factors
considered included (1) a portion of the questioning took place at the
police station, (2) the interview was extensive, and it included a
pointed question about the defendant's complicity in the crime under
investigation, (3) the officers' tone was polite and not intimidating,
(4) their questions were not accusatory and the defendant was not led
to believe he was a suspect or that the officers considered him
guilty, (5) the defendant was told several times that he was free to
leave, and (6) he was allowed to return home at the close of the
interview. (Id. at pp. 25-26.)
The circumstances here are virtually identical to
those in Spears. Although the officers never expressly stated
Schuster was free to go, that such was the situation was clearly
conveyed, even after the deception about the cell phone came to light.
A reasonable person in Schuster's situation would have believed, at
all times, that she was free to terminate the interview and leave.
II. Discharge of Juror
Schuster contends the trial court committed
reversible error and violated her federal constitutional rights when
it discharged Juror No. 001 near the end of trial. The People say
Schuster has failed to show an abuse of discretion in light of the
juror's commission of serious misconduct. We conclude Juror No. 001
was discharged properly.
The Trial Court Proceedings
The jury was sworn on October 18, 2007.17
When telling jurors where they should gather the following Monday,
the bailiff expressly asked them to be on time.
The evidentiary portion of trial began on October
22. In the course of its preinstructions, the trial court told
jurors, inter alia, that they could discuss the case together only
after the evidence had been presented, the attorneys had completed
their arguments, and the trial court had instructed on the law. The
trial court also admonished the jurors to keep an open mind throughout
the trial and not to make up their minds about any issue in the case
until after they discussed the case with the other jurors during
deliberations. Last, the trial court told them that they would be
permitted to separate at recesses, and that at the end of the day the
trial court would tell them when to return and that it was important
that they be there on time. The trial court again cautioned jurors
not to talk about the case or any people or subjects involved in it
with anyone, including each other, during the breaks, and not to make
up their minds about any issue prior to deliberations. The trial
court told jurors that they would be advised to “ ‘remember the
admonition’ ” every time they left the courtroom, and that this would
remind them not to talk about the case and not to form or express any
opinion about it until it was finally submitted to them.
At the outset of the morning session on October 24,
the trial court stated that one juror was late for the second time in
a row, and it had instructed the bailiff to tell her that “we're not
doing this any longer. Running late is not an excuse to be late to
court.” The trial court confirmed with both counsel that they did
not think anything else should be done.
At the outset of the morning session on November 5,
the trial court observed that one of the jurors had been consistently
late, including that morning, despite the 10:00 a.m. start. That the
juror in issue was Juror No. 001 was made clear when she apologized
after the jury was brought into the courtroom.
At the outset of the afternoon session on November
7, the trial court noted for the record that Juror No. 001 was 20
minutes late. At the parties' request, however, the trial court did
not do anything about it for the time being.
On November 8, the prosecutor interrupted testimony
concerning the location of the cell phone towers that handled various
calls and asked for a bench conference, at which he voiced concern
about Juror No. 001. The trial court excused the jury for the
morning break, had Juror No. 001 brought in, told her that people were
concerned she might have been upset or crying in the courtroom, and
asked if she was all right. She responded, “I'm fine. I'd like to
go have a smoke. I'd like to go have a cigarette. And I'd just
like to carry on and listen to the testimony and do what needs to be
done.” The trial court again asked if she was okay; she responded,
“I'm fine. Thank you very much. And I apologize if for some reason
I've in any way disrupted or otherwise this proceeding. I don't-I
just need a cigar. Okay? How is that?”
After the juror was excused to take her break, the
trial court noted that it had discussed with both counsel, in
chambers, Juror No. 001's behavior, apart from concerns about her
being late on several occasions and the disappointment other jurors
had expressed about her tardiness. The trial court observed that
Juror No. 001 had been in court all morning wearing sunglasses for no
apparent reason, and had had her head down and seemingly had been
inattentive to the testimony and exhibits. It also noted that one of
the other jurors had told the bailiff that most of the jurors were
distracted by Juror No. 001's behavior during trial, and that the day
before the juror sitting next to Juror No. 001 appeared to be
distracted by Juror No. 001's standing up, sitting down, moving
around, and going through her purse during testimony. The trial
court determined that neither party was asking it to undertake any
further inquiry at that point.
On the morning of November 27, Juror No. 001 was
approximately 25 minutes late. On the afternoon of November 29, the
trial court asked jurors if they could continue a little past 4:30
p.m. Juror No. 119 related that she had to teach a class at 5:00 p.m.,
and so, given traffic conditions, she was already late. Juror No.
001 interrupted and said, “Hell, late is late. I know that. I'm
When the trial court took the morning break on
December 4, it asked Juror No. 001 to remain behind. The trial court
informed her of its observation that she had had trouble maintaining a
still position in the jury box over the course of the trial. The
trial court further noted that the previous day she came into the
courtroom with some food and her purse, and that she went in and out
of her purse during the proceedings. This was reported to the trial
court as being distracting to the other jurors. Juror No. 001
apologized and said she would “try real hard” not to feel in her bag.
The trial court informed her that it had to stop. The juror
offered to leave her purse in the jury room, and she again apologized.
After she left the courtroom, the trial court
informed counsel that at least one juror had told the bailiff that she
and others were distracted by Juror No. 001's behavior. The trial
court did not propose to take any additional action unless either
attorney wanted it to consider something further. Neither did.
At the end of the day, the trial court informed the
parties that the bailiff had related that two other jurors were now
reporting continued distracting behavior by Juror No. 001 and were
offering to address the trial court on that issue. The prosecutor
related that he thought he had heard some audible expression-possibly
a chuckle-from Juror No. 001 during Schuster's testimony. The
prosecutor noted that he had been upset earlier with a different juror
giving Schuster a “thumbs up” sign, which the prosecutor considered an
expression of opinion, and the prosecutor believed this was almost the
equivalent. He felt it was improper conduct and noted that it
occurred after the entire jury was admonished regarding that type of
behavior. The prosecutor expressed concern about Juror No. 001
remaining and opined that some inquiry was required, at least of the
two jurors who now were reporting problems. The trial court then
ascertained that one of the jurors, Juror No. 119, had already left,
but that Juror No. 121 was still there, as was Juror No. 69, who had
complained that morning.
The trial court then solicited defense counsel's
views. Defense counsel stated that the jury was made up of 12
different people, and that a juror did not have to fit a certain mold.
He stated that for the most part, he had observed Juror No. 001 to
be attentive and now making an effort to be on time. Defense counsel
stated he was against micromanaging the affairs of the jury by talking
with one juror about the conduct of another. He felt it was a
dangerous practice and did not think the trial court ought to allow
the jurors to be divisive in the sense that they were telling on one
another. He opined that they should just leave it alone.
The trial court agreed with defense counsel that
there should be severe limits on the extent to which a court examined
jurors about the conduct of other jurors in the course of a trial.
At the same time, the trial court felt it had some obligation, in
light of the concerns expressed by some of the jurors, to ensure that
they had been attentive and to let them know that the trial court had
undertaken to address the problem with Juror No. 001. Neither
counsel voiced an objection. Juror Nos. 69 and 121 then were brought
in, and both confirmed that they had been able to give their attention
to the evidence, despite the distractions. The trial court informed
them that it had admonished Juror No. 001 that the distracting
behavior was to stop.
After the jurors left, the prosecutor requested
that the trial court replace Juror No. 001 based on the cumulative
effect of the various incidents that had occurred. Defense counsel
stated that he did not think there should be any further action or
inquiry. The trial court invited the prosecutor to provide some
authority that Juror No. 001's behavior rose to the level of serious
misconduct that would authorize the trial court to excuse her.
At the beginning of the December 6 session, the
trial court confirmed that neither party was asking it to remove Juror
No. 001 at that time. The prosecutor then began his opening
summation. Advised that Juror No. 119 wanted to address the trial
court, the trial court asked her to remain at the lunch recess. When
asked what had happened, Juror No. 119 replied: “It's not what you
say, it's what you do. And there are five or six of us wondering why
Juror 001 is still here after so many complaints that * * * *121 ․ and
I made yesterday as well. You folks are not in the jury room and we
are. So we know of a hell of a lot more what's going on than what is
expressed within here. I'm sorry for my language. But several of
us are angry and feel that this hampers the jury.”
Asked to specify the conduct she had observed,
Juror No. 119 related that Juror No. 001 had no respect for the entire
proceeding and had been talking about what was going on in the
courtroom. Juror No. 119 said that she personally knew of it
happening two days earlier, and that it was not specifically what
Juror No. 001 said as much as “innuendo and attitude,” such as, “Well,
we're sure as hell not going to believe that, ha, ha.” Juror No. 119
also was upset by Juror No. 001 laughing, in light of what was
presented the preceding Monday. She explained: “Monday we were
presented with the pictures of the deceased. And I take that
tremendously seriously and many of us do. And, um, her attitude all
along has been oh, she's not a bad person. But she's lackadaisical
and not serious about this entire procedure. And I know that when
you present this to her she will promise to be [a] good girl and
everything. But what you say is not what you do.”
The prosecutor noted that the jury had been
admonished, both at the beginning of trial and later, not to form or
express any opinions, and he asked when Juror No. 001 made the
statement about who was going to believe something. Juror No. 119
responded: “It was previous to Tuesday[, December 4]. Because when it
came to a head on Tuesday it was because she had drunk two cans of Red
Bull at lunch and was sitting back there scribble, scribble, scribble.
She'd shift the page, scribble, scribble, scribble. The court
reporter has several times looked back. I've seen the judge look
back. [¶] I cannot tell you that it is specifically something that
she has said, but her manner of behavior is extremely distracting.
And I can't speak for others but oh, boy, she's a distraction. And I
personally-I don't trust her to be fair. And I have been told
several times that she was going to be replaced. And several of us
are wondering why she hasn't been? And so, you know, you have to
think okay, if that's what we've been told, it must be something that
she has said to change that opinion. Because many of us have
complained over the course of the past two months․” Juror No. 119
then related that Juror No. 001's comment, which was something to the
effect of who was going to believe that, was probably made within the
preceding two weeks.
Defense counsel confirmed with Juror No. 119 that
it was not Juror No. 001's words, but rather her attitude and manner
of behavior that was the problem. Juror No. 119 stated: “People's
eyes are going or rolling or something like that. Okay? Um, so I
can't tell you that it's specific. We have been together for two
months now. And it's become sort of like a little family. And we
do not discuss the proceedings that go on in here. Period. End of
statement. Because everyone takes this tremendously seriously.
This is incredibly serious. And we all know it. And we are all
weighed with that burden. And to have somebody acting like that
really pisses me off.”
After Juror No. 119 exited the courtroom, the trial
court noted that several weeks earlier-possibly not even halfway into
the trial-Juror No. 118 had reported to the bailiff that when he and
Juror No. 001 went out on cigarette breaks together, Juror No. 001
attempted to engage him in conversation about the case. Juror No.
118 specifically told her, possibly on more than one occasion, that
they could not talk about the case. When that was related to the
bailiff, the trial court shared it informally with counsel, neither of
whom believed any record needed to be made, or any inquiry of Juror
No. 118 undertaken, at that point. Instead, it was agreed that at
the end of that court session the trial court would specifically
remind the jurors that they were not to talk about the case or form or
express any opinions about it with each other or anyone else, rather
than simply telling them to remember the admonition.
The trial court expressed the view that Juror No.
001's apparent refusal to comply with the trial court's specific
directions not to talk about the case or express any opinion
constituted serious and willful misconduct, such that it was the trial
court's tentative intention to replace her as a juror. The trial
court viewed the report of Juror 119-which it saw as coming “from her
heart” and which it was inclined to accept-as demonstrating a direct
violation of the trial court's ongoing orders, and it invited both
counsel to think about their responses over the lunch recess and also
whether there was a need for further investigation.
After the lunch break, the prosecutor renewed his
request that Juror No. 001 be replaced with an alternate juror without
further investigation or inquiry. Defense counsel viewed the
proposed action as being “particularly drastic,” given the stage of
the proceedings. When he observed that Juror No. 001 was never
specifically admonished after the purported incident with Juror No.
118, the trial court responded that it was because defense counsel did
not want her specifically admonished. Defense counsel found it
obvious Juror No. 001 was not part of the family Juror No. 119 said
the jury had become, but that was not misconduct.
Defense counsel further expressed concern with
Juror No. 119's saying they were told Juror No. 001 was going to be
removed. He wanted to know who told them that and suggested they had
committed the real misconduct by talking among themselves about
wanting her removed. Defense counsel moved for a mistrial or, if not
granted, objected strongly “to empowering this one group of people, or
the so-called members of the family, by dismissing Juror 001․” He
further asserted that what Juror No. 001 said about who would believe
something was not much different than what anybody serving on a jury
over a lengthy period of time might say.
The trial court found good cause, within the
meaning of section 1089, to discharge Juror No. 001, and it denied the
motion for mistrial. The trial court disagreed with the defense
characterization of Juror No. 119's remarks about the jurors becoming
a family as somehow meaning Juror No. 001 was excluded from that
family. More importantly, it found this had been an ongoing issue
with Juror No. 001 since the beginning of trial. It further noted
that it had started by dealing with Juror No. 001's lateness
informally and had advised the bailiff to let her know that if it
continued, she could be excused from the jury. The trial court
concluded that this was the source of Juror No. 119's reference, as
the other jurors became aware, probably through Juror No. 001 herself,
that she had been warned about the consequences of late and rude
behavior. Then it was agreed that all of the jurors would be
reminded of the importance of the trial court's admonition not to talk
about the case or form or express any opinion. The jurors were so
The trial court concluded that the incident
concerning Juror No. 001 reported by Juror No. 119 constituted a
direct and continuing violation of the trial court's admonition not to
talk about the case or form or express any opinions. The trial court
disagreed with the opinion that a comment about the credibility of a
witness was the kind of comment jurors typically make. The trial
court believed it constituted good cause for discharge, particularly
in light of everything else. The trial court found that this was not
just a single instance of improper behavior, “but an ongoing apparent
disregard of the court's directions and instructions to ensure both
sides here a fair trial.”
As to whether further investigation was required or
desirable, the trial court found it had to weigh the need to
demonstrate further the accuracy of Juror No. 119's report and what
the trial court already had heard about Juror No. 001's behavior
against the danger of inquiring into the other jurors' points of view
and the risk of invading their thought processes about this case.
Accordingly, the trial court declined to undertake any further inquiry
of the other jurors as it was satisfied, from everything it had heard,
that there was sufficient evidence that Juror No. 001 could not and
would not comply with the trial court's reasonable directions. The
trial court then related that the preceding Tuesday the news cameraman
had told counsel that Juror No. 001 had asked whether the prosecutor
was married. Whatever the meaning, the trial court found it
particularly inappropriate and a further demonstration that Juror No.
001 was unable to perform her duties and to follow the trial court's
instructions, as well as some suggestion of prejudice on her part.
The trial court then had Juror No. 001 brought into
the courtroom. It informed her that she was being excused as a juror
in this case, whereupon she asked for help with a traffic ticket she
had received that morning. After she left, the other jurors were
brought in and admonished not to let anything that had happened affect
their judgment, and not to consider any statements Juror No. 001 may
have made. The trial court asked if anyone thought he or she could
not set aside what had occurred; no one responded. An alternate
juror was substituted in place of Juror No. 001, and the prosecutor
then completed his opening summation.
Schuster subsequently moved for a new trial on the
grounds, inter alia, that the trial court erred by dismissing Juror
No. 001 and failing to inquire properly into the veracity of Juror No.
119's claims. In denying the motion, the trial court reiterated the
history of the problems with Juror No. 001. It noted that had Juror
No. 119's allegations occurred without more, the trial court might
have asked Juror No. 001, and possibly others, about the circumstances
reported by Juror No. 119. Instead, Juror No. 119's claims added to
a clear series of failures by Juror No. 001 to comply with the trial
court's directions. In the trial court's view, the entire course of
conduct demonstrated serious misconduct, which was why the trial court
discharged her and declined to undertake further investigation
concerning the accuracy of what Juror No. 119 had reported.
“Section 1089 authorizes the trial court to
discharge a juror at any time before or after the final submission of
the case to the jury if, upon good cause, the juror is ‘found to be
unable to perform his or her duty.’ A trial court ‘has broad
discretion to investigate and remove a juror in the midst of trial
where it finds that, for any reason, the juror is no longer able or
qualified to serve.’ [Citation.]” (People v. Bennett (2009) 45
Cal.4th 577, 621; see People v. Boyette (2002) 29 Cal.4th 381, 462,
While broad, however, the trial court's discretion
is not unlimited. (People v. Roberts (1992) 2 Cal.4th 271, 325.)
“ ‘The juror's inability to perform the functions of a juror must
appear in the record as a “demonstrable reality” and will not be
presumed. [Citation.]’ ” (People v. Zamudio (2008) 43 Cal.4th 327,
349.) “The demonstrable reality test ‘requires a showing that the
trial court as trier of fact did rely on evidence that, in light of
the entire record, supports its conclusion that [disqualification] was
established.’ [Citation.] To determine whether the trial court's
conclusion is ‘manifestly supported by evidence on which the court
actually relied,’ we consider not just the evidence itself, but also
the record of reasons the trial court provided. [Citation.] In doing
so, we will not reweigh the evidence. [Citation.]” (People v.
Wilson (2008) 43 Cal.4th 1, 26.) We will uphold the trial court's
determination if it is supported by substantial evidence. (People v.
Bennett, supra, 45 Cal.4th at p. 621.)
A juror's repeated willful violation of the trial
court's instructions, even if neutral as between the parties, is
serious misconduct from which a trial court may conclude that the
juror will not follow other instructions and is therefore unable to
perform his or her duty as a juror, thus warranting discharge.
(People v. Wilson (2008) 44 Cal.4th 758, 834-835; People v. Daniels
(1991) 52 Cal.3d 815, 863-864.) The record here establishes, as a
demonstrable reality, that Juror No. 001 committed serious and
deliberate misconduct by violating the trial court's instructions to
refrain from discussing the case and expressing opinions thereon.
(See People v. Ledesma (2006) 39 Cal.4th 641, 743; Daniels, supra,
52 Cal.3d at pp. 864-865; compare Wilson, supra, 44 Cal.4th at p.
836.) Hence, substantial evidence supports the trial court's
determination that she was unable to perform her duty within the
meaning of section 1089. (See People v. Williams (2001) 25 Cal.4th
Schuster argues, however, that the trial court
failed to conduct an adequate hearing to determine whether Juror No.
001's conduct amounted to serious and willful misconduct justifying
her discharge. Schuster faults the trial court for accepting Juror
No. 119's report as true without making an effort to determine from
other jurors whether that report was accurate.
When a court is informed of allegations, which, if
proven true, would constitute good cause for a juror's removal, a
hearing sufficient to determine the facts is required. (People v.
Barnwell (2007) 41 Cal.4th 1038, 1051; People v. Keenan (1988) 46
Cal.3d 478, 538; People v. Burgener (1986) 41 Cal.3d 505, 519,
disapproved on another ground in People v. Reyes (1998) 19 Cal.4th
743, 756.) The trial court must make “ ‘whatever inquiry is
reasonably necessary to determine if the juror should be
discharged.’ ” (People v. Farnam (2002) 28 Cal.4th 107, 141; accord,
People v. Bradford (1997) 15 Cal.4th 1229, 1348.) Although the
investigation may include live testimony where appropriate (People v.
Keenan, supra, at p. 538), the scope of the investigation is
“committed to the sound discretion of the trial court. [Citation.]”
(People v. Bonilla (2007) 41 Cal.4th 313, 350.)
Here, the trial court held a hearing, allowing
Juror No. 119 to speak and then both counsel to question her regarding
her allegations concerning Juror No. 001. Under the circumstances,
we conclude this constituted adequate inquiry. The question of
credibility was one for the trial court, which was able to assess both
the behavior and demeanor of Juror No. 119 when she spoke and also the
behavior and demeanor of Juror No. 001, both while evidence was being
presented and previously when Juror No. 001 was questioned about her
behavior. (See People v. Wilson, supra, 44 Cal.4th at p. 835; People
v. Lucas (1995) 12 Cal.4th 415, 489.) “[A] juror's ‘behavior and
demeanor [may] suppl[y] substantial evidence ․’ of good cause for
discharge. [Citation.]” (People v. Zamudio, supra, 43 Cal.4th at p.
349.) Given the trial court's assessment of Juror No. 119's
credibility, Juror No. 001's previous conduct and the complaints by
other jurors, and especially the prior report by Juror No. 118 that
Juror No. 001 was discussing the case, in violation of the trial
court's oft-repeated admonition not to do so, the trial court was not
required to question Juror No. 001 or the remaining jurors. (See
People v. Ramirez (2006) 39 Cal.4th 398, 456-458 [trial court
discharged juror after receiving information that several jurors had
seen him sleeping during trial; at hearing, jury foreperson was
questioned].) This is especially true in light of defense counsel's
previously expressed concerns in that regard.
The trial court did not abuse its discretion by
discharging Juror No. 001 or denying Schuster's motion for a new
trial. Since legal grounds to discharge Juror No. 001 existed, it
follows that the discharge of the juror did not deny Schuster her
federal constitutional rights. (People v. Boyette, supra, 29 Cal.4th
at p. 463, fn. 20.)
III. Jury Instructions and Related Issues
Schuster contends the trial court erred by refusing
to give a requested pinpoint instruction defining the uncharged crime
of accessory. We conclude the instruction properly was refused.
The Trial Court Proceedings
As previously described, Schuster denied killing
Timothy, directing Fagone to kill him, or having a hand in his death
by, for instance, purchasing acid or the blue barrel for the purpose
of disposing of his remains. The gist of her testimony was that she
knew nothing about Timothy's death until told about it by Fagone,
whereupon, rather than reporting the matter to police and running the
risk of ruining T.'s trip, she helped Fagone move the barrel
containing the body from her lab to her storage unit. She also made
Fagone promise that he would take care of moving it somewhere it could
not be found.
Schuster subsequently requested that the trial
court give a modified version of CALCRIM No. 440 (accessories) as a
pinpoint instruction. Schuster's proposed instruction read:
“Larissa Schuster has admitted to being an
accessory after the fact. She was not charged with being an
accessory after the fact. To prove that the defendant was guilty of
this crime, the People would have had to prove that:
“1. Another person, whom I will call the
perpetrator, committed a felony;
“2. The defendant knew that the perpetrator had
committed a felony or that the perpetrator had been charged with or
convicted of a felony;
“3. After the felony had been committed, the
defendant either harbored, concealed, or aided the perpetrator;
“4. When the defendant acted, she intended that the
perpetrator avoid or escape arrest, trial, conviction, or punishment.
“The prosecution has requested that you determine
whether Larissa Schuster was an aider and abettor. The prosecution
must show that an aider and abettor intended to facilitate or
encourage the target offense before or during its commission. If the
defendant formed an intent to aid after the crime was completed, then
he or she may be liable as an accessory after the fact. Factors
relevant to determining whether a person is an aider and abettor
include: presence at the scene of the crime, companionship, and
conduct before or after the offense.”
The trial court denied the request, finding that
accessory after the fact is not a lesser included offense of the crime
charged, and that courts are no longer required or allowed to instruct
on lesser related offenses.18
The trial court proposed, however, to modify CALCRIM No. 401 to make
it clear that in order to be guilty based on an aiding and abetting
theory, a defendant must have harbored the requisite intent before or
during, but not after, the commission of the crime.19
Defense counsel stated that he was satisfied with
the modification, but still requested that a pinpoint instruction on
accessory be given. Defense counsel argued that even though
accessory was not a lesser included offense, it was “very much so a
lesser-related offense that conforms significantly to the factual
scenario in this case,” and he requested that the instruction “be
given simply so as to give the jury an understanding of that
particular offense as it relates to the testimony of Ms. Schuster.”
The trial court denied the request.
“Every person who, after a felony has been
committed, harbors, conceals or aids a principal in such felony, with
the intent that said principal may avoid or escape from arrest, trial,
conviction or punishment, having knowledge that said principal has
committed such felony or has been charged with such felony or
convicted thereof, is an accessory to such felony.” (§ 32.)
The crime of being an accessory is not a lesser
included offense of murder. (People v. Jennings (2010) 50 Cal.4th
616, 668.) Whether accessory is a lesser related offense of murder
depends, at least to a certain extent, on the circumstances of each
case. (See People v. Jones (1993) 14 Cal.App.4th 1252, 1257-1258.)
We need not decide whether it was a lesser related offense here,
since, as Schuster acknowledges, “[a] defendant has no right to
instructions on lesser related offenses, even if he or she requests
the instruction and it would have been supported by substantial
evidence, because California law does not permit a court to instruct
concerning an uncharged lesser related crime unless agreed to by both
parties. [Citations.]” (People v. Jennings, supra, at p. 668;
accord, People v. Yeoman (2003) 31 Cal.4th 93, 129; People v. Birks
(1998) 19 Cal.4th 108, 112-113, 136-137 (Birks ).)
Schuster claims the trial court erred when it
relied on Birks to deny the request for an instruction defining the
crime of accessory because she did not ask for instructions that would
permit the jury to convict her of violating section 32. Rather, she
says, she desired the instruction so that jurors would understand she
had admitted, in her testimony, having committed a crime the
prosecutor elected to withhold from jury consideration.
In light of defense counsel's references to lesser
included and lesser related offenses, we are not convinced the trial
court misinterpreted the basis for Schuster's request.20
If the trial court made the correct ruling, however, we will uphold
that ruling, regardless of the trial court's reasoning. (People v.
Smithey (1999) 20 Cal.4th 936, 972.)
“Under appropriate circumstances, ‘a trial court
may be required to give a requested jury instruction that pinpoints a
defense theory of the case by, among other things, relating the
reasonable doubt standard of proof to particular elements of the crime
charged. [Citations.] But a trial court need not give a pinpoint
instruction if it is argumentative [citation], merely duplicates other
instructions [citation], or is not supported by substantial evidence
[citation].’ [Citation.]” (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 99.) The trial court is required to instruct on the law
applicable to the facts of the case; it should refuse any instruction
that invites the jury to draw inferences favorable to one party from
specified items of evidence. (People v. Mincey (1992) 2 Cal.4th 408,
We question whether it is proper for a trial court
to tell a jury, as stated in the first sentence of Schuster's proposed
instruction, that a defendant has admitted committing a criminal
offense, even if that offense was not charged. Such a determination
is more factual than legal and may involve credibility issues that
should be resolved by the trier of fact, not the trial court. We
also question whether the bringing or omission of particular charges
is a proper subject for a trial court's instructions, as it implicates
prosecutorial charging discretion that is generally not supervised by
the courts. (People v. Ceja (2010) 49 Cal.4th 1, 7; see County of
Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 61.) The last
part of the proposed instruction, which related the timing of the
formation of intent to liability as an aider and abettor versus an
accessory, was rendered duplicative by the trial court's modification
of CALCRIM No. 401. We thus conclude the trial court did not err by
refusing to give Schuster's version. (See People v. Cash (2002) 28
Cal.4th 703, 736.)
Schuster also contends the jury should have been
informed that her act of helping Fagone hide the body amounted to a
crime. She claims this was important to her legal theory that she
was guilty of being an accessory, but not guilty of murder; a
pinpoint instruction defining the crime proscribed by section 32 would
have helped jurors understand that the consciousness of guilt evidence
resulted from Schuster's violation of section 32, but did not indicate
she was guilty of murder.
Defense counsel never articulated this theory of
the defense when arguing that the trial court should give the
requested instruction. Regardless, “[i]t has never been the law that
an accused is entitled to instructions on offenses for which [s]he is
not charged in order to urge the jury that [s]he could have been
convicted of something other than what is alleged.” (People v.
Valentine (2006) 143 Cal.App.4th 1383, 1387.) Here, Schuster clearly
was not precluded from arguing that her conduct was criminal and that
it explained the consciousness of guilt evidence, but did not give
rise to liability for the charged offense.21
(See People v. Rundle (2008) 43 Cal.4th 76, 148, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22.) What mattered from her standpoint was not what the admitted
conduct might be called or the precise elements of the crime of being
an accessory, but rather that her conduct, occurring after the charged
offenses, explained her guilty actions and statements but did not
constitute aiding and abetting murder or make her liable for the
charged offense. Thus, such an instruction was not necessary for the
jury's understanding of the applicable law or Schuster's theory of the
case, and it easily could have been confusing where the jury properly
was not given the option of returning a verdict on the offense.22
B. Battered Spouse Syndrome
Schuster contends her trial attorney provided
constitutionally deficient representation when he presented evidence
that Schuster suffered from BSS, but then failed to request an
instruction telling jurors how they could use that evidence to find
Schuster acted under provocation if they found her responsible for
killing Timothy. We conclude the record fails to establish that
defense counsel lacked a reasonable tactical purpose for the omission
or that Schuster was prejudiced thereby.
The Trial Court Proceedings
Dr. Estner testified that BSS has to do with
physical abuse, but can have emotional factors as well. It involves
a spouse who will not make it possible to have a comfortable
relationship, but also will not allow the relationship to end, or,
from the other perspective, someone who is trapped in a bad
relationship, but also is prevented from escaping it.
In Estner's opinion, Schuster manifested this type
of syndrome in the context of this case. Even when Estner saw her in
the fall of 2003, Schuster was so obsessed with the relationship that
it was as if Timothy were still alive. She continuously provided
Estner with information concerning things that seemed like petty flaws
of Timothy, but which had caused her great emotional distress.
Estner believed Schuster's mental state when he saw her then was
somewhat representative of her mental state previously.
In Estner's opinion, Schuster was driven and
assertive and expected that from others, including Timothy. Her
expectations were not being met, as Timothy had more of a nurturing
and passive personality-in her view, passive aggressive. Schuster
physically and emotionally lost capacity for the marital relationship;
she was starting to become medically and mentally ill with
depression, cardiac arrhythmia, and broad hair loss. Her exhibiting
hatred toward Timothy made sense from a psychiatric point of view;
someone who is assertive and aggressive and has those expectations of
others is particularly upset by someone he or she perceives as
passive. If someone is angry at another person and that person does
not give an outlet for the anger, the first person just gets madder
Estner viewed Schuster's statements that she wished
Timothy were dead as a type of “passive homicidality.” Passive
homicidality is no indication of an intent to kill the other person.
Schuster's passive wishes that Timothy was dead were a way of escaping
a very bad relationship, and so were consistent with the application
of emotional BSS to Schuster's case.
During the jury instruction conference, the trial
court confirmed that Schuster was requesting an instruction on
voluntary manslaughter based on heat of passion, and that the
prosecutor did not object in light of the evidence presented through
Estner and others. The trial court further confirmed that the
defense was withdrawing its requests for CALCRIM Nos. 850 and 851,
since Estner's testimony was not intended to explain why a witness did
not come forward or to offer some kind of a defense to Schuster's
having murdered her husband, at least in the context of her being the
During his argument to the jury, the prosecutor
remarked that he initially was unsure of the point of Estner's
testimony, since this was not a case in which a mental defense, such
as not guilty by reason of insanity, was being offered. He now
thought that the point of the testimony was to explain why Schuster
was so angry. Defense counsel did not mention Estner's testimony in
his closing argument. He did tell jurors, however: “But homicide,
voluntary manslaughter, second-degree murder, first-degree murder,
she's not guilty of any of them. And please don't compromise and say
well, you know, she didn't like her husband. And she said these mean
Pursuant to CALCRIM No. 570, the trial court
“A killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant killed someone
because of a sudden quarrel or in the heat of passion. The defendant
killed someone because of a sudden quarrel or in the heat of passion
if one, the defendant was provoked; two, as a result of the
provocation the defendant acted rashly and under the influence of
intense emotion that obscured her reasoning or judgment; and three,
the provocation would have caused a person of average disposition to
act rashly and without due deliberation, that is from passion rather
than from judgment.
“Heat of passion does not require anger, rage or
any specific emotion. It can be any violent or intense emotion that
causes a person to act without due deliberation and reflection. In
order for heat of passion to reduce a murder to voluntary manslaughter
the defendant must have acted under the direct and immediate influence
of provocation as I have defined it. While no specific type of
provocation is required, slight or remote provocation is not
sufficient. Sufficient provocation may occur over a short or long
period of time. It's not enough that the defendant simply was
provoked. The defendant is not allowed to set up her own standard of
conduct. You must decide whether the defendant was provoked and
whether the provocation ․ was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average
disposition would have been provoked and how such a person would react
in the same situation knowing the same facts.
“If enough time passed between the provocation and
the killing for a person of average disposition to cool off and regain
her clear reasoning and judgment, then the killing is not reduced to
voluntary manslaughter on this basis.
“The People have the burden of proving beyond a
reasonable doubt that the defendant did not kill as a result of a
sudden quarrel or in the heat of passion. If the People have not met
this burden, then you must find the defendant not guilty of murder.”
As previously described, jurors convicted Schuster
of first degree murder.
Schuster contends that, because nothing in CALCRIM
No. 570 suggested that evidence of BSS could be used to find
provocation, defense counsel was remiss in not requesting a modified
version of CALCRIM No. 851 in order to inform the jury of that legal
We have not found any authority allowing evidence
of BSS to be admitted on the issue of provocation (as opposed to
self-defense), or discussing how such evidence relates to voluntary
manslaughter based on sudden quarrel or heat of passion. We will
assume it is admissible for that purpose, however. (See Evid.Code,
§ 1107; People v. Coffman and Marlow, supra, 34 Cal.4th at pp.
98-101.) Although we express no opinion concerning the propriety of
the language of the instruction Schuster now proposes, we also will
assume that a modified version of CALCRIM No. 851 would be given upon
proper request. (But see People v. Steele (2002) 27 Cal.4th 1230,
1252-1253 [for voluntary manslaughter, both provocation and heat of
passion must be affirmatively shown; because circumstances giving
rise to heat of passion are viewed objectively, defendant's
“ ‘extraordinary character and environmental deficiencies,’ ”
including “psychological dysfunction due to traumatic experiences,”
are irrelevant to the inquiry].)
The burden of proving ineffective assistance of
counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412,
425.) “To secure reversal of a conviction upon the ground of
ineffective assistance of counsel under either the state or federal
Constitution, a defendant must establish (1) that defense counsel's
performance fell below an objective standard of reasonableness, i.e.,
that counsel's performance did not meet the standard to be expected of
a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result
absent counsel's shortcomings. [Citations.] ‘A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926,
1003; see generally Strickland v. Washington (1984) 466 U.S. 668,
“If the record contains no explanation for the
challenged behavior, an appellate court will reject the claim of
ineffective assistance ‘unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.’ [Citation.]” (People v. Kipp (1998) 18
Cal.4th 349, 367.) In other words, “in assessing a Sixth Amendment
attack on trial counsel's adequacy mounted on direct appeal,
competency is presumed unless the record affirmatively excludes a
rational basis for the trial attorney's choice. [Citations.]”
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Here, the record fails affirmatively to disclose
the lack of a rational tactical purpose for the challenged omission.
(See People v. Ray (1996) 13 Cal.4th 313, 349.) The clear theory of
the defense was that Schuster was not guilty of anything but being an
accessory. That defense counsel wanted the jury given the option of
finding voluntary manslaughter based on heat of passion does not mean
he reasonably could not place his emphasis, both in terms of what to
argue and what instructions to request, on obtaining a complete
acquittal. Under the circumstances, defense counsel reasonably could
have decided that CALCRIM No. 570 was adequate, and that more
extensive instructions on the subject would simply detract from the
defense's push for a not guilty verdict without adding much to the
jury's understanding of the applicable legal principles.
Furthermore, the record affirmatively establishes
that omission of an instruction on BSS did not prejudice Schuster.
The California Supreme Court has stated that “ ‘[h]eat of passion
arises when “at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than
from judgment.” ’ [Citation.]” (People v. Lee (1999) 20 Cal.4th 47,
59 (lead opn. of Baxter, J.).) By contrast, that court has defined
“ ‘deliberate’ ” as “ ‘ “formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action” ’ ” and “ ‘premeditated’ ” as
“ ‘ “considered beforehand.” ’ ” (People v. Memro (1995) 11 Cal.4th
786, 862-863.) “First degree willful, deliberate, and premeditated
murder ‘involves a cold, calculated judgment,’ ” even if arrived at
quickly (People v. Carasi (2008) 44 Cal.4th 1263, 1306); thus, the
state of mind for that offense “ ‘is manifestly inconsistent with
having acted under the heat of passion-even if that state of mind was
achieved after a considerable period of provocatory conduct.’
Under the instructions given here, jurors could
return their verdict of first degree murder only if they found
Schuster acted “willfully, deliberately and with premeditation.”
They were told, in pertinent part, that Schuster acted “willfully if
she intended to kill”; “deliberately if she carefully weighed the
considerations for and against her choice, and knowing the
consequences, decided to kill”; and “with premeditation if she
decided to kill before committing the act that caused the death.”
They expressly were told that “[a] decision to kill made rashly,
impulsively or without careful consideration is not deliberate and
The jury was given a comprehensive instruction on
provocation and heat of passion, and nothing in that instruction
precluded a consideration of BSS with respect to the issue. (See
People v. Wharton, supra, 53 Cal.3d at p. 572.) In light of jurors'
rejection of the notion that Schuster's reason was obscured or
disturbed by passion, the giving of a pinpoint instruction relating
BSS to provocation clearly would not have made any difference in the
verdict. (See People v. Manriquez (2005) 37 Cal.4th 547, 586; People
v. Wharton, supra, at p. 572.) This is especially true where, as
here, the evidence of premeditation and deliberation was overwhelming.25
C. Financial Gain
Schuster raises two claims in connection with the
instructions on the financial gain special circumstance. First, she
contends the trial court committed error in answering a question from
the deliberating jury about the definition of that special
circumstance. Second, she argues the trial court violated her
federal constitutional rights by refusing her requested unanimity
instruction. We reject both claims.
The Trial Court Proceedings
Pursuant to CALCRIM No. 720, the jury was
instructed: “The defendant is charged with the special circumstance
of murder for financial gain. To prove that this special
circumstance is true, the People must prove that one, the defendant
intended to kill; and two, the killing was carried out for financial
gain.” Jurors also were told that the People had the burden of
proving the special circumstance beyond a reasonable doubt, and that
in order to return a finding that the special circumstance was or was
not true, all 12 jurors had to agree.
During deliberations, the jury sent out a note
stating it could not decide the special circumstance and needed
clarification, specifically, “Does it have to be the primary reason or
partial reason?” After input from counsel, and relying on People v.
Michaels (2002) 28 Cal.4th 486 (Michaels ), the trial court proposed
to reread CALCRIM No. 720 and then add language telling jurors it was
not necessary that financial gain have been the only purpose, or even
the primary purpose, for the killing.
The prosecutor had no objection to the trial
court's proposed response. Defense counsel, however, objected to the
phrase “ ‘or even the primary purpose for the killing.’ ” When asked
if he had any authority that the objected-to phrase was not a correct
statement of the law, defense counsel admitted he did not, but argued
that all the jury needed to know was that there could be more than one
The trial court noted that it was required to
answer the questions of the jury to the extent possible, and that the
jury specifically used the phrase “ ‘primary reason.’ ” Defense
counsel responded that the challenged phrase tended to suggest that
any type of purpose, no matter how weak, would support the special
circumstance. He argued that “it should be a real purpose, not just
a possible or light-one that doesn't have much substance to it. In
other words, when you talk about primary or not primary, you suggest a
weighing process․ [¶] In other words, ․ if it's not a primary purpose
but it's a lesser purpose, it suggests that ․ any circumstance would
be enough. And I don't think that's what the law requires. I think
it has to be a purpose that can be found beyond a reasonable doubt.”
Defense counsel then requested that jurors be
instructed that they had to be unanimous as to the facts or
circumstances supporting the financial-gain special circumstance. He
noted that they had to determine if financial gain was a motive in
this case, and a lot of evidence had been presented that may or may
not have shown such a motive. The trial court denied the request,
finding it similar to the defense's earlier request-also denied-that
the jury be instructed to agree unanimously whether Schuster was an
aider and abettor or the actual perpetrator. The trial court found
no requirement in the law of juror unanimity in this situation.
When the jury returned to the courtroom, the trial
court stated that it was going to read a few sentences from an
instruction already given, and then add a paragraph the trial court
and counsel thought addressed the specific question asked. The trial
court then stated: “So the instruction was [CALCRIM No.] 720. It
says, the defendant is charged with a special circumstance of murder
for financial gain. To prove that this special circumstance is true,
the People must prove that one, the defendant intended to kill; and
two, the killing was carried out for financial gain. And here's the
addition: In order to find this special circumstance true, you must
unanimously find that the People have proven beyond a reasonable doubt
that the intentional killing was carried out for the purpose of
obtaining financial gain. However, it's not necessary that financial
gain have been the only purpose for the killing or even the primary
purpose for the killing.”
Pursuant to section 190.2, subdivision (a)(1), a
defendant convicted of first degree murder is subject to the death
penalty or life in prison without the possibility of parole if “[t]he
murder was intentional and carried out for financial gain.” In
Michaels, supra, 28 Cal.4th at page 519, the California Supreme Court
held that the financial gain special circumstance applies even if the
gain was only a secondary purpose.
Michaels in turn relied on People v. Noguera (1992)
4 Cal.4th 599, 635, in which the state high court rejected a claim
that the failure of the standard instruction to require the jury to
find that the financial gain motive was a dominant, substantial, or
significant motive for the murder violated the Eighth Amendment to the
United States Constitution. The trial court there reiterated that
“ ‘[p]roof of actual pecuniary benefit to the defendant from the
victim's death is neither necessary nor sufficient to establish the
financial-gain special circumstance,’ ” and instead found “ ‘ “the
relevant inquiry [to be] whether the defendant committed the murder in
the expectation that he would thereby obtain the desired financial
gain.” ’ [Citation.]” (Noguera, supra, at p. 636, quoting People v.
Edelbacher (1989) 47 Cal.3d 983, 1025 (Edelbacher ).26
Schuster says the phrase “or even the primary
purpose for the killing” required a lesser showing than that set out
in Edelbacher because it incorrectly indicated that any purpose, no
matter how weak, would support the special circumstance. We
disagree. The California Supreme Court has made it clear that in
order for the financial-gain special circumstance to apply, “such gain
need not be the sole or main motive for the murder. [Citations.]”
(People v. Carasi, supra, 44 Cal.4th at pp. 1308-1309, italics
added.) Indeed, in People v. Crew (2003) 31 Cal.4th 822, 851, the
court stated: “It is not required that the murder be committed
exclusively or even primarily for financial gain. [Citations.]”
(Italics added.) The mandate of the special circumstance provision
is simply “that anyone who intentionally commits murder for purposes
of financial gain should be eligible for the death penalty or life
imprisonment without possibility of parole.” (People v. Jackson
(1996) 13 Cal.4th 1164, 1229.)
The state Supreme Court has rejected the view that
the financial-gain special circumstance would apply where there is any
possibility of a pecuniary effect upon the defendant. (People v.
Crew, supra, 31 Cal.4th at p. 852.) We conclude, however, there is
no reasonable likelihood the jury misunderstood and misapplied the
trial court's answer to the question as permitting a true finding
under such circumstances. (See People v. Smithey, supra, 20 Cal.4th
at p. 963.) The jury's request for clarification made it clear
jurors were considering a reason that was at least substantial enough
to qualify as a “partial” reason for the murder; they did not ask
whether the mere possibility of a financial effect was sufficient, or
whether it was enough if financial gain provided a slight reason for
Schuster suggests that if the trial court had
simply omitted the challenged clause from the instruction, it would
have been correct. The trial court's response then would have been
correct as far as it went, but it would not have answered the jury's
question-it would not have told them whether financial gain had to be
the primary reason for the killing. Under section 1138, “[t]he court
has a primary duty to help the jury understand the legal principles it
is asked to apply. [Citation.]” (People v. Beardslee (1991) 53
Cal.3d 68, 97.) 27
While “comments diverging from the standard are often risky,” “a
court must do more than figuratively throw up its hands and tell the
jury it cannot help.” (Ibid.) The trial court here did not err by
responding to the question as it did.
Nor did the trial court err by refusing to give a
unanimity instruction. It is apparent that Schuster sought to
require unanimity with respect to the motive or theory underlying the
finding of financial gain-whether the anticipated gain involved the
business, the house, or something else. “A requirement of jury
unanimity typically applies to acts that could have been charged as
separate offenses. [Citations.]” (People v. Beardslee, supra, 53
Cal.3d at p. 92, italics added.) “ ‘A unanimity instruction is
required only if the jurors could otherwise disagree which act a
defendant committed and yet convict [her] of the crime charged.’
[Citations.]” (Id. at p. 93.) Stated another way, “When an
accusatory pleading charges the defendant with a single criminal act,
and the evidence presented at trial tends to show more than one such
unlawful act, either the prosecution must elect the specific act
relied upon to prove the charge to the jury, or the court must
instruct the jury that it must unanimously agree that the defendant
committed the same specific criminal act. [Citation.]” (People v.
Melhado (1998) 60 Cal.App.4th 1529, 1534, italics added.)
We are cited to no authority, and are aware of
none, extending the concept of unanimity to a defendant's motive for
committing a crime or the theory underlying the offense. As cogently
explained in People v. Russo (2001) 25 Cal.4th 1124, 1134-1135
(Russo ), “The key to deciding whether to give the unanimity
instruction lies in considering its purpose. The jury must agree on
a ‘particular crime’ [citation]; it would be unacceptable if some
jurors believed the defendant guilty of one crime and other jurors
believed her guilty of another. But unanimity as to exactly how the
crime was committed is not required. Thus, the unanimity instruction
is appropriate ‘when conviction on a single count could be based on
two or more discrete criminal events,’ but not ‘where multiple
theories or acts may form the basis of a guilty verdict on one
discrete criminal event.’ [Citation.] In deciding whether to give
the instruction, the trial court must ask whether (1) there is a risk
the jury may divide on two discrete crimes and not agree on any
particular crime, or (2) the evidence merely presents the possibility
the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime. In the first
situation, but not the second, it should give the unanimity
The motive or theory underlying a crime, or, in
this case, the financial-gain special circumstance, is similar to the
second situation described in Russo. Jurors were instructed that
they had to agree unanimously on whether Schuster committed the murder
for financial gain; the murder carried out for financial gain was the
single discrete criminal event. Jurors did not have to be unanimous
with respect to the exact theory supporting the conclusion that the
purpose was financial gain. (See, e.g., People v. Sapp (2003) 31
Cal.4th 240, 283-285 [no unanimity instruction required where jurors
could have relied on two different theories in finding that defendant
killed victim for financial gain; incidents were intertwined and no
juror would have believed one but disbelieved the other]; People v.
Millwee (1998) 18 Cal.4th 96, 160-161 [unanimity as to theory under
which killing deemed culpable-premeditation or felony murder-is not
compelled as matter of state or federal law; trial court did not err
by not telling jurors to agree on reason for first degree murder
verdict]; People v. Memro, supra, 11 Cal.4th at pp. 869-870 [no
unanimity required as to particular manner in which felony murder
occurred]; People v. Mickle (1991) 54 Cal.3d 140, 178 [where jury
agreed that lewd act supporting special circumstance occurred under
one of two viable, closely connected theories, failure to unanimously
select one factual scenario immaterial; unanimity rule does not
extend to minute details of how single, agreed-upon act was
committed]; see also People v. Nakahara (2003) 30 Cal.4th 705,
712-713 [nothing in Apprendi v. New Jersey (2000) 530 U.S. 466
requires unanimous jury verdict as to particular theory justifying
finding of first degree murder].)
D. CALCRIM No. 220
The trial court instructed the jury with CALCRIM
No. 220, as follows:
“The fact that a criminal charge has been filed
against the defendant is not evidence that its charge is true. You
must not be biased against the defendant just because she's been
arrested or charged with a crime or brought to trial.
“A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove the
defendant guilty beyond a reasonable doubt. Whenever I tell you that
the People must prove something, I mean they must prove it beyond a
reasonable doubt. Proof beyond a reasonable doubt is proof that
leaves you with an abiding conviction that the charge is true.
“The evidence need not eliminate all possible
doubt, because everything in life is open to some possible or
imaginary doubt. In deciding whether the People have proved their
case beyond a reasonable doubt you must impartially compare and
consider all the evidence that was received through the entire trial.
Unless the evidence proves the defendant is guilty beyond a
reasonable doubt she's entitled to an acquittal. And you must find
her not guilty.” (Italics added.)
Schuster contends the emphasized language directing
jurors to “compare and consider” the evidence undermined the
presumption of innocence and lightened the prosecution's burden of
proof by suggesting Schuster was required to produce evidence to be
compared. She argues the emphasized reference to an “abiding
conviction” further lightened the prosecution's burden of proof by
conveying the idea of a determination that will last, but omitting the
requisite concept of a conviction based on weighty evidence.28
Both the United States and California Supreme
Courts have rejected challenges to the constitutionality of CALJIC No.
2.90, which is worded similarly to CALCRIM No. 220.29
(See, e.g., Victor v. Nebraska (1994) 511 U.S. 1, 16-17; People v.
Farley (2009) 46 Cal.4th 1053, 1122; People v. Whisenhunt, supra, 44
Cal.4th at p. 221.) We and numerous other courts specifically have
rejected the argument that CALCRIM No. 220 suggests the defendant is
required to produce evidence, or the closely related claim that the
instruction eliminates the doctrine of reasonable doubt due to lack of
evidence. (See, e.g., People v. Zavala (2008) 168 Cal.App.4th 772,
780-781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119;
People v. Stone, supra, 160 Cal.App.4th at pp. 331-332; People v.
Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Hernandez Rios
(2007) 151 Cal.App.4th 1154, 1156-1157; cf. People v. Taylor, supra,
48 Cal.4th at p. 631 & fn. 15 [rejecting claim CALJIC No. 2.90 failed
to make clear defense had no obligation to present or refute
In Victor v. Nebraska, supra, 511 U.S. at pages
14-15, the United States Supreme Court stated: “An instruction cast
in terms of an abiding conviction as to guilt, without reference to
moral certainty, correctly states the government's burden of proof.
[Citations.]” (Italics added.) Courts universally have rejected
challenges to CALCRIM No. 220's use of the phrase “abiding
conviction,” including that it conflates the separate concepts of
duration and weight. (People v. Stone, supra, 160 Cal.App.4th at pp.
332-334; see also People v. Zepeda (2008) 167 Cal.App.4th 25, 28-32;
People v. Guerrero (2007) 155 Cal.App.4th 1264; 1268; cf. People
v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9 [suggesting modification
of CALJIC No. 2.90 to refer to “abiding conviction” without references
to “moral evidence” and “moral certainty”; People v. Light (1996) 44
Cal.App.4th 879, 884-889 [upholding postmodification version of CALJIC
We agree with the cases cited above and conclude
there was no constitutional infirmity in CALCRIM No. 220 as given at
IV. Cumulative Prejudice
Last, Schuster contends that the cumulative effect
of errors committed at trial rendered the proceedings fundamentally
unfair, thereby violating her right to due process. Since we
conclude there were no errors, it follows that there was no cumulative
prejudice. Schuster received a fair trial.
The judgment is affirmed.
CORNELL, Acting P.J.
1. FN1. All
statutory references are to the Penal Code unless otherwise stated.
2. FN2. Schuster
was jointly charged with James Fagone. The prosecution elected not
to seek the death penalty against either defendant, whose trials were
ordered severed. Fagone was tried first and after his December 12,
2006, conviction, venue for Schuster's trial was changed to Los
Angeles County. Fagone's case is not before us on this appeal.
3. FN3. Fagone,
who was in his 20's, was a lab assistant at CCRL for part of 2002.
After he quit, he often babysat T. and performed other tasks for
4. FN4. Further
references to dates in the statement of facts are to dates in 2003,
unless otherwise specified.
5. FN5. The
recording contained messages Schuster had left on Timothy's answering
machine, apparently in 2002. In many of them, Schuster called
Timothy vulgar names and cast aspersions on his masculinity and
demanded the return of certain items of property. On one occasion,
she threatened to have his nursing license removed. On another, she
said she hated his guts and hoped he burned in hell.
6. FN6. A
video recording of the interview was shown to the jury. As Schuster
was very talkative and volunteered information on a number of
subjects, there was much more conversation between her and the
detectives than we summarize here.
7. FN7. In
rebuttal, the prosecution presented expert witnesses who disagreed
with Herrmann's conclusions.
8. FN8. We
will discuss Estner's testimony in more detail in conjunction with
Schuster's claim of ineffective assistance of counsel, which we
9. FN9. Cell
phone records showed that at the end of the 22-second call, the tower
handling the call switched to one closer to Timothy's house than the
originating tower. Schuster denied driving to Timothy's house; she
was home when she made the call.
10. FN10. Expert
witnesses disagreed about the use of aqua regia, the mixture of
hydrochloric and nitric acids discussed by Schuster, to clean
glassware, and the quantity of that solution that would be required to
clean the amount of glassware at CCRL. People who would have expected
to be informed if such a mass cleaning project were planned received
no such information from Schuster.
11. FN11. During
a search, a receipt for a stun gun and two batteries was found
attached to a bulletin board in Fagone's room.
12. FN12. A
search of the hard drive on Fagone's computer showed that the operator
repeatedly typed “ ‘can chloroform make you pass out’ ” in connection
with a Web site called Ask.com.
13. FN13. Schuster
also raised Fourth and Sixth Amendment grounds that she does not now
14. FN14. The
content of Schuster's interview with police is summarized in the
statement of facts, ante. We focus here on the circumstances
surrounding the interview. We have viewed and considered the video
recording, as did the trial court. There is no video of what
occurred outside the interview room.
15. FN15. In
Harris v. New York (1971) 401 U.S. 222, 225-226, the high court held
that, although the prosecution may not introduce unwarned statements
as part of its case-in-chief, such statements may be used to impeach a
defendant's inconsistent testimony.
16. FN16. The
length of the interview was due in significant part to the amount of
information Schuster volunteered-some of it tangentially relevant at
best-in response to questions.
17. FN17. Further
references to dates in this section of the Discussion are to dates in
18. FN18. The
trial court also refused to give the unmodified version of CALCRIM No.
440, which would have set out the elements of the crime of being an
accessory to a felony in the same language as those elements were
stated in Schuster's proposed instruction.
19. FN19. The
trial court subsequently instructed the jury: “To prove that the
defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that one, the perpetrator committed the
crime, two, the defendant knew that the perpetrator intended to commit
the crime; three, before or during, but not after, the commission of
the crime the defendant intended to aid and abet the perpetrator in
committing the crime; and four, the defendant's words or conduct did,
in fact, aid and abet the perpetrator's commission of the crime.”
20. FN20. When
arguing for a new trial, Schuster's attorney described the defense
theory as being that the evidence showed Schuster was guilty of
violating section 32, and he complained that the jury was not given
the option of convicting appellant of being an accessory.
21. FN21. For
instance, defense counsel pointed out to the jury that the prosecution
chose to charge Schuster with first degree murder, not with being an
accessory after the fact, and that the prosecution assumed the
responsibility of that choice and of proving each element of that
charge beyond a reasonable doubt. Defense counsel also pointed out
that aiding and abetting and accessory were different, and that doing
something after the commission of the crime-in this case, murder-did
not make one an aider and abettor. He admitted to the jury that
Schuster, knowing her estranged husband was dead, did some “very, very
odd things,” but argued that she was not thinking logically at the
time. He also argued that she was not guilty of anything other than
the one crime with which the prosecution did not charge her, accessory
after the fact. Although the prosecutor obviously took the position
that Schuster was guilty of first degree murder, he did not contradict
the defense's assertion that she had admitted committing the crime of
being an accessory after the fact.
22. FN22. For
the same reasons, we would conclude there was no prejudice were we to
find error. (See People v. Wharton (1991) 53 Cal.3d 522, 571 & fn.
23. FN23. As
requested, CALCRIM No. 850 read: “You have heard testimony from an
expert, Miles Estner, of battered women's syndrome _
). [¶] Dr.
Estner's testimony about (battered women's syndrome/intimate partner
) is not
evidence that the defendant committed any of the crimes charged
against (him/her). [¶] You may consider this evidence only in
deciding whether or not ‘s_
conduct was not inconsistent
with the conduct of someone who has been abused, and in evaluating the
believability of (his/her) testimony.”CALCRIM No. 851 read: “You have
heard testimony from Dr. Miles Estner regarding the effect of battered
women's syndrome/intimate partner battering/_).
[¶] Dr. Estner's testimony about (battered women's syndrome/intimate
) is not
evidence that the defendant committed the crime charged against her.
[¶] You may consider this evidence only in deciding whether the
defendant actually believed that (he/she) needed to defend
(himself/herself) against an immediate threat of great bodily injury
or death, and whether that belief was reasonable or unreasonable. [¶]
When deciding whether the defendant's belief was reasonable or
unreasonable, consider all the circumstances as they were known by or
appeared to the defendant. Also consider what conduct would appear
to be necessary to a reasonable person in a similar situation with
24. FN24. Schuster
suggests: “You have heard testimony from Dr. Stephen Estner regarding
the effect of battered spouse syndrome. [¶] Dr. Estner's testimony
about battered spouse syndrome is not evidence that the defendant
committed the crime charged against her. [¶] You may consider this
evidence only in deciding whether the defendant acted with provocation
if you find that she is legally responsible for the death of Timothy
Schuster. [¶] I have defined provocation for you in another
instruction. If you find the defendant killed Timothy Schuster while
acting under the influence of legal provocation, you should find her
not guilty of murder but rather guilty of voluntary manslaughter.”
25. FN25. In
People v. Berry (1976) 18 Cal.3d 509, the California Supreme Court
found that the trial court's error in refusing to instruct on
voluntary manslaughter based on sudden quarrel or heat of passion was
prejudicial, despite the defendant's having been convicted of first
degree murder. (Id. at pp. 512, 518.) In that case, however, the
instructions referred only casually to heat of passion and
provocation, and then only for the purpose of distinguishing between
first and second degree murder. (Id. at p. 518.) Under the
circumstances, the reviewing court was unable to conclude that the
verdict of first degree murder indicated the jury necessarily resolved
the factual question posed by the omitted instruction adversely to the
defendant under other, properly given instructions. (Ibid.) Here, by
contrast, an instruction on heat-of-passion voluntary manslaughter was
given that directed the jury to consider evidence of Timothy's course
of allegedly provocative conduct, and placed on the People the burden
of disproving heat of passion beyond a reasonable doubt. Contrary to
the situation in Berry, the jury's finding of first degree murder here
necessarily meant jurors resolved the factual issue adversely to
Schuster and found her state of mind to be inconsistent with that
necessary for voluntary manslaughter. Accordingly, Berry does not
control our prejudice analysis.
26. FN26. Edelbacher
was disapproved on another ground in People v. Loyd (2002) 27 Cal.4th
997, 1007, footnote 12.
27. FN27. Section
1138 provides, in pertinent part: “After the jury have retired for
deliberation, ․ if they desire to be informed on any point of law
arising in the case, ․ the information required must be given.”
28. FN28. The
People suggest Schuster has forfeited any challenge to the instruction
because she requested it. We disagree, because the issues raised
implicate Schuster's substantial rights. (§ 1259; see People v.
Taylor (2010) 48 Cal.4th 574, 630, fn. 13; People v. Holmes (2007)
153 Cal.App.4th 539, 544; but see People v. Stone (2008) 160
Cal.App.4th 323, 331.)
29. FN29. CALJIC
No. 2.90 defines reasonable doubt, in pertinent part, as “that state
of the case which, after the entire comparison and consideration of
all the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction of the truth of
the charge.” Prior to 1994, the concluding phrase read, “an abiding
conviction to a moral certainty of the truth of the charge.” (See
People v. Whisenhunt (2008) 44 Cal.4th 174, 221, fn. 13.)
30. FN30. Schuster
cites us to Stoltie v. California (C.D.Cal.2007) 501 F.Supp.2d 1252,
the majority of which was adopted by the Ninth Circuit Court of
Appeals in Stoltie v. Tilton (9th Cir.2008) 538 F.3d 1296. Although
the district court believed that CALCRIM No. 220 was deficient for
failing to convey to jurors that they must be subjectively certain of
a defendant's guilt in order to convict (Stoltie v. California, supra,
at p. 1261), the opinion does not assist Schuster because the issue
addressed was not the validity of the instruction itself, but whether
an analogy made by the trial judge in an attempt to explain reasonable
doubt was prejudicially misleading when taken in the context of the
overall charge (id. at pp. 1254-1255, 1262, 1264).