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Name: People v. Zielesch
Case #: C059872
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/23/2009

Conviction for murder is proper where the co-conspirator’s unplanned murder of patrol officer was a foreseeable result of the conspiracy. Appellant bailed Volarvich out of jail and asked him to kill Shamberger, who had been sleeping with appellant’s wife. He provided Volarvich with the weapon and money to purchase methamphetamine. The next day, Volarvich was stopped by Officer Stevens for a traffic violation. High on methamphetamine and afraid of going back to jail, he killed Officer Stevens. In his appeal from his conviction for first degree murder, appellant contended that his murder conviction must be reversed because the shooting of Officer Stevens was not in furtherance of the conspiracy to kill Shamberger and was both unforeseen and unforeseeable. The appellate court rejected the argument, finding the jury’s verdict was supported by substantial evidence. Given appellant’s knowledge of Volarvich’s mental state, and his willingness to supply him with methamphetamine and a gun, the jury could find that a natural and probable consequence of the conspiracy to murder Shamberger was that, if Volarvich were detained by law enforcement, he would kill the officer to avoid arrest and complete his mission to kill Shamberger. “[O]ne who bargains for an assassin’s services and then arms the assassin with a gun, takes the assassin as he finds him.”
Reversal was not required where spectators were allowed to wear color photo buttons of the murder victim. Appellant also contended on appeal that reversal was required because he was denied his right to a fair trial when the judge allowed courtroom spectators to wear buttons displaying a color photograph of the victim during the first few weeks of trial. The appellate court rejected the argument, finding it an insult to the intelligence and the integrity of the jurors to suggest that despite admonitions by the court, the jurors would have been so influenced by buttons that they would be unable to base their verdict on the evidence. It is presumed that the jury followed the court’s admonition and that the wearing of buttons presented no probability of prejudice.