P. v. Wollett

Filed 2/16/12 P. v. Wollett CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
PATRICK OREN WOLLETT,
Defendant and Appellant.
2d Crim. No. B224204
(Super. Ct. No. F411505)
(San Luis Obispo County)
Patrick Oren Wollett appeals the judgment following his conviction for
willful, deliberate and premeditated murder or murder by means of lying in wait (Pen.
Code, §§ 187/189),1 and for assault with a deadly weapon (§ 245, subd. (a)(1)). The jury
found allegations to be true that Wollett personally used a deadly weapon in the murder
(§ 12022, subd. (b)), and personally inflicted great bodily injury in the assault (§ 12022.7,
subd. (a)). The jury also found an allegation to be true that a principal was armed with a
firearm in the murder. (§ 12022, subd. (a)(1).) Wollett was sentenced to a total term of
32 years to life in state prison.
Wollett contends the trial court committed instructional error concerning
the natural and probable consequence doctrine, aider and abettor liability, and voluntary
intoxication as it relates to the assault offense. We conclude that the trial court erred in
1 All statutory references are to the Penal Code unless otherwise stated.

-- 1 of 12 --

2
failing to instruct the jury that to convict him of first degree premeditated murder under
the natural and probable consequences rule, the jury must find that first degree
premeditated murder, not simply murder, was a natural and probable consequence of the
assault. Accordingly, we reverse the first degree murder conviction and remand for
further proceedings consistent with this opinion. Otherwise, we affirm.
FACTS
Wollett, codefendant Chad Westbrook, Sarah Lonsinger-Rey (Rey), and
Hope Tanore, lived together in Wollett's trailer. Rey had been engaged to Wollett's
brother. Tanore was Westbrook's sister. The murder victim, Joshua Houlgate, was a
friend of Westbrook. For several days prior to the shooting, they all consumed
considerable amounts of methamphetamine.
On the evening of December 5, 2007, Wollett, Westbrook, Rey and Tanore
went to a bar where they were later joined by Houlgate. Houlgate left the bar alone. The
others drove back to their trailer in Tanore's car. Rey fell asleep on a couch. Westbrook,
Wollett and Tanore went into a bedroom. Wollett brought a shotgun to the trailer for no
apparent reason.
Wollett's friend Brad McCormick came over to visit. After a while, Wollett
asked McCormick to leave, stating to McCormick that "something's going to happen. I
want you to leave." As McCormick walked away from the trailer, Wollett said
something to the effect that he "may be going to jail for the rest of my life."
Tanore received a telephone call from Houlgate at approximately 1:30 a.m.
He said he would like to come to the trailer if Tanore would give him a ride home.
Tanore agreed and told Wollett and Westbrook that Houlgate was coming over. Houlgate
arrived at the trailer 20 minutes later and began socializing with Westbrook, Wollett and
Tanore. Houlgate brought some methamphetamine with him. At approximately 3:00
a.m., Houlgate went into the living room where Rey was sleeping. He woke her up and
they engaged in sexual intercourse. Afterwards, they fell asleep on a mattress on the
floor. Wollett was upset at Rey and Houlgate for having sex because she had been
engaged to Wollett's brother.

-- 2 of 12 --

3
Tanore left the trailer at approximately 4:00 a.m. She drove her car to the
street and was picked up by a friend. Shortly thereafter, a witness saw Wollett sitting in
Tanore's car with the motor idling. At about the same time, Wollett sent a text message
to friend Susan Meszaros stating that he "may need help soon. Be there for me."
At approximately 5:00 a.m. on December 6, the sleeping Houlgate and Rey
were awakened when Westbrook and Wollett began hitting them with a baseball bat and
a metal object. They protected themselves as best they could and, although injured, were
able to stand up. At this time, Westbrook was standing near Houlgate holding a shotgun
he had obtained from somewhere in the trailer. Wollett was standing near Rey. Houlgate
ran for the sliding door and Westbrook shot him. Westbrook reloaded and pointed the
shotgun at Rey who begged him not to shoot her. Westbrook dropped the shotgun
without firing and ran out the back door of the trailer. Wollett ran out the front door.
Neighbors heard a bang, came to investigate, and found Houlgate lying in
the parking lot in front of the trailer. Houlgate died at the scene from a shotgun wound to
his chest. Rey suffered two broken bones in her foot and other injuries. Houlgate also
had injuries from blunt force trauma. One injury was consistent with being hit with a
baseball bat. Houlgate's blood was found on the pillow case and on Wollett's jeans.
There was a trail of blood from the trailer door to where Houlgate fell.
Within minutes after the shooting, Wollett called his friend Tyler Strohl,
and left messages saying he needed help and was on the run. Strohl had a Remington
shotgun which had been taken from his home a day or two earlier. Wollett had visited
Strohl during that period and knew he had a shotgun. When Wollett and Strohl talked
later in the day, Wollett told Strohl that "shit happened; shit went down." Wollett told
Strohl that the shotgun had been taken care of. Wollett also called friends Susan
Meszaros and Chelsea Gordon asking for help. At 8:00 a.m., Wollett and Westbrook
went to the home of Chelsea Gordon's mother to wait for Chelsea. Westbrook also called
a friend to ask for a ride.
Recordings of two conversations between Wollett and Westbrook after
their arrest were admitted at trial. During the first conversation, Wollett stated, "I wasn't

-- 3 of 12 --

4
the shooter. I'm not gonna say who anyone was, I don't know, dude." Westbrook stated,
"The gun went off. Where it come from, I don't know. He had it?" During the second
conversation, Wollett stated, "I told them, you know, what happened, you know, there
was a struggle and you brought the shotgun and say, you know, [unintelligible] because
you know, my brother's fiancé - you know, they were doin' it in here, grabbed me
[unintelligible], the shotgun [unintelligible] . . . you're a goner, and I grabbed the closest
thing I had to me, a bat, and, you know, and then there was a struggle, with the shotgun,
it all happened real fast."
During the investigation, a Remington shotgun shell was found in
Westbrook's residence, and a 25-inch metal pipe was found in Tanore's car. In
September 2008, a Remington shotgun and a baseball bat were found a few hundred
yards from the trailer.
DISCUSSION
Prejudicial Error in Natural and Probable Consequence Instruction
Wollett contends the trial court incorrectly instructed the jury on the natural
and probable consequences doctrine of aider and abettor liability. We agree, and
conclude that the trial court had a sua sponte duty to instruct the jury that it must
determine whether premeditated murder was a natural and probable consequence of the
assault in order to convict Wollett of premeditated murder.
A defendant is liable as a principal in the commission of a criminal offense
when, with knowledge of the unlawful purpose of the perpetrator, her or she aids and
abets its commission and has the specific subjective intent to commit the offense or
encourage or facilitate its commission. (People v. Prettyman (1996) 14 Cal.4th 248,
259.) In addition to liability for an intended offense (target offense), an aider and abettor
may be liable for an unintended offense that is a natural and probable consequence of the
target offense. (Id. at p. 261.) An offense is a natural and probable consequence of the
target offense if a reasonable person in the defendant's position would or should have
known that offense was reasonably foreseeable as a consequence of the target offense.
(People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)

-- 4 of 12 --

5
The test for natural and probable consequence liability is an objective one.
The standard "'. . . is not whether the aider and abettor actually foresaw the additional
crime, but whether, judged objectively, it was reasonably foreseeable. . . .'" (People v.
Medina (2009) 46 Cal.4th 913, 920.) This determination is a factual question to be
resolved by the jury in light of all of the circumstances. (People v. Nguyen, supra, 21
Cal.App.4th at p. 531.)
Here, the prosecution did not argue that Wollett was liable for the murder
because of his subjective intent to commit, facilitate, or encourage the murder. The
prosecution argued that Wollett aided and abetted the assault and the murder was a
natural and probable consequence of the assault, and the jury was instructed only on that
theory. The instruction stated that, to find Wollett guilty of premeditated murder, the jury
must find that he committed assault with a deadly weapon, a co-participant in the assault
committed the offense of murder, and a reasonable person in Wollett's position would
have known that murder was a natural and probable consequence of the assault. (See
CALCRIM No. 402.)2
2 The complete version of CALCRIM No. 402 given by the court stated: "The
defendants are charged in Count 1 with Murder. [¶] In determining if a defendant is
guilty of the crime of Murder on an Aiding and Abetting theory you must first decide
whether the defendant is guilty of Assault with a Deadly Weapon or Firearm. If you find
the defendant is guilty of this crime, you must then decide whether he is guilty of Murder.
[¶] Under certain circumstances, a person who is guilty of one crime also may be guilty
of other crimes that were committed at the same time. [¶] To prove that the defendant is
guilty of Murder, the People must prove that: [¶] 1. The defendant is guilty of Assault
With A Deadly Weapon or Firearm; [¶] 2. During the commission of The Assault With
A Deadly Weapon or Firearm a coparticipant in that Assault With a Deadly Weapon or
Firearm committed the crime of Murder; AND [¶] 3. Under all of the circumstances, a
reasonable person in the defendant's position would have known that the commission of
Murder was a natural and probable consequence of the commission of the Assault With a
Deadly Weapon or Firearm. [¶] A coparticipant in a crime is the perpetrator or anyone
who aided and abetted the perpetrator. It does not include a victim or innocent bystander.
[¶] A natural and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances established by the evidence. If the
Murder was committed for a reason independent of the common plan to commit the
Assault With a Deadly Weapon or Firearm, then the commission of Murder was not a
natural and probable consequence of Assault With a Deadly Weapon or Firearm. [¶] To
decide whether the crime of Murder was committed, please refer to the separate
instructions that I will give you on that crime."

-- 5 of 12 --

6
Wollett contends that the natural and probable consequence instruction was
incomplete because the trial court failed to instruct the jury that to convict him of first
degree premeditated murder, the jury must find that first degree premeditated murder, not
simply murder, was a natural and probable consequence of the assault. Wollett relies on
People v. Hart (2009) 176 Cal.App.4th 662 (Hart), which concluded that a conviction
for premeditated attempted murder under the natural and probable consequence doctrine
requires an express jury finding that premeditated attempted murder, not simply
attempted murder, was a natural and probable consequence. People v. Cummins (2005)
127 Cal.App.4th 667, and People v. Favor (2010) 190 Cal.App.4th 770, however,
concluded that the finding was not required. Our Supreme Court granted review in Favor
(review granted Mar. 16, 2011, S189317), and the issue is pending before that court.
We agree with the reasoning of Hart. In Hart, a codefendant shot a store
owner during an attempted robbery. His accomplice in the attempted robbery was
convicted of premeditated attempted murder under the natural and probable consequence
doctrine. (Hart, supra, 176 Cal.App.4th at p. 665.) The jury had been instructed that it
could find the accomplice guilty of premeditated attempted murder if it found that
attempted murder, not attempted premeditated murder, was a natural and probable
consequence of attempted robbery.
Hart concluded that the instruction was deficient because it did not relate
"premeditation and deliberation to the natural and probable consequences instruction."
(Hart, supra, 176 Cal.App.4th at p. 670.) Hart noted that other instructions defined
premeditation and deliberation as elements of the offense of attempted premeditated
murder, but stated that these instructions were insufficient. (Ibid.)
Here, too, the jury was instructed on the elements of first and second degree
murder and the required subjective mental states for each of those offenses. (See
CALCRIM Nos. 520, 521, and 875.) In determining whether premeditated and deliberate
murder was a natural and probable consequence of the assault, however, the jury does
not look at the aider and abettor's subjective state of mind. The jury must determine the
objective state of mind of a reasonable person in the aider and abettor's situation. (Hart,

-- 6 of 12 --

7
supra, 176 Cal.App.4th at p. 673.) The question is whether, at the time the assault began,
a reasonable person would have foreseen not only that the victim would be killed but also
that the killer would premeditate and deliberate the killing. The instructional issue arises
because there are different degrees of murder.3 The jury must be instructed on how to
apply the objective standard of the natural and probable consequences doctrine when
different degrees of murder are involved.
The trial court failed to inform or provide any guidance to the jury that it
could convict Wollett of a lesser offense than Westbrook under the natural and probable
consequences doctrine. Under the instructions given, the jury may have found Wollett
guilty of murder using the natural and probable consequences doctrine, an objective test,
and then found him guilty of premeditated and deliberate murder based on his subjective
mental state as described in the jury instruction setting forth the elements of the offense.
Based on the evidence, a reasonable jury could have concluded that shooter
Westbrook was guilty of premeditated first degree murder but aider and abettor Wollett
was guilty of no more than unpremeditated second degree murder. Although Wollett
was an active participant in the planning and execution of the assault, the jury could have
found that a reasonable person in Wollett's position would not have foreseen that
Westbrook would shoot Houlgate with premeditation and deliberation. Stated differently,
the jury may have found Wollett guilty because a reasonable person would have foreseen
a killing as a natural and probable consequence of the assault, but without considering
whether a reasonable person would have foreseen that the killing would be committed
with premeditation and deliberation.
Therefore, Wollett's premeditated murder conviction must be reversed and
the case remanded to the trial court. Because reversal is based on instructional error,
Wollett may be retried on the charge of premeditated murder if the People so choose.
3 Hart, of course, concerned attempted murder. Although attempted murder is not
formally divided into degrees, Hart characterizes attempted premeditated and
unpremeditated attempted murder as the functional equivalents of first and second degree
murder. (Hart, supra, 176 Cal.App.4th at p. 672.)

-- 7 of 12 --

8
(People v. Edwards (1985) 39 Cal.3d 107, 118 [retrial permitted after instructional error];
Hart, supra, 176 Cal.App.4th at p. 674.)
No Prejudicial Error in "Equally Guilty" Instruction
Wollett contends the trial court erred by instructing the jury that a person is
"equally guilty" whether he or she committed a crime personally or aided and abetted its
commission. (Former CALCRIM No. 400.) We conclude that the claim has been
forfeited and that any error was harmless.
An aider and abettor may be convicted of a greater or lesser crime than the
direct perpetrator if the aider and abettor does not act with the same mental state as the
direct perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1114–1122; People v.
Woods (1992) 8 Cal.App.4th 1570, 1577–1578.) Except under the natural and probable
consequence doctrine, an aider and abettor must know the full extent of the criminal
purpose of the direct perpetrator, and act with the intent or purpose of facilitating the
perpetrator's commission of the crime. (McCoy, at p. 1118; People v. Samaniego (2009)
172 Cal.App.4th 1148, 1164.)
In People v. Samaniego, supra, 172 Cal.App.4th at page 1165, the court
concluded that the version of CALCRIM No. 400 used in the instant case may be
misleading because it did not expressly state that an aider and abettor cannot be convicted
of first degree murder without having the mental state required for first degree murder.
In April 2010, CALCRIM No. 400 was revised to eliminate the word "equally." The
Bench Notes to revised CALCRIM No. 400 (2011) page 167 state: "An aider and abettor
may be found guilty of a different crime or degree of crime than the perpetrator if the
aider and abettor and the perpetrator do not have the same mental state. [Citations.]"
We agree that the instruction given in the instant case was misleading but,
because the instruction is correct under most circumstances, Wollett was obligated to
request a modification. Failure to do so forfeits his claim. (People v. Lang (1989) 49
Cal.3d 991, 1024; People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163–1165.)
Even if the claim were preserved for appeal, the error was harmless. Apart from the
previously-discussed error in the natural and probable consequence jury instruction, the

-- 8 of 12 --

9
verdict would have been the same without the error beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.)
Wollett's reliance on People v. Nero (2010) 181 Cal.App.4th 504, is
unavailing. During deliberations in Nero, the jury asked whether an aider and abettor
must be found guilty of the same degree of homicide as the perpetrator, or could be found
guilty of a lower level of homicide. Without consulting counsel, the trial court
reinstructed the jury pursuant to CALJIC No. 3.00 which included the "equally guilty"
language challenged in the instant case. The appellate court concluded that the trial
court's failure to correctly instruct the jury in the face of an express question by the jury
was not harmless error. (Id. at p. 518.) Here, the jury asked no questions on the subject
and there is no indication that the jury was confused or uncertain.
No Prejudicial Error in Voluntary Intoxication Instruction
Wollett contends the trial court erred by failing to instruct the jury that it
could consider voluntary intoxication in determining whether he had the mental state
necessary to aid and abet the assault with a deadly weapon. We conclude that any error
was harmless.
Generally, evidence of voluntary intoxication is not admissible to negate
the intent required for general intent crimes such as assault. (People v. Atkins (2001) 25
Cal.4th 76, 81.) As we have stated, however, aider and abettor liability requires the
person to act with knowledge of the direct perpetrator's criminal purpose and intend to
commit, encourage or facilitate the commission of the offense. (People v. Mendoza
(1998) 18 Cal.4th 1114, 1123.) Accordingly, evidence of voluntary intoxication is
admissible to establish whether an aider and abettor acted with that required mental state
even if the target crime is a general intent crime. (Id. at pp. 1131-1134.)
The trial court instructed the jury that, in order to find Wollett guilty of
murder, the jury must find that Wollett aided and abetted Westbrook in the commission
of the assault and that murder was a natural and probable consequence of the assault.
The court also instructed that the jury could consider voluntary intoxication in deciding
the murder charge. (CALCRIM No. 625.) But, the trial court failed to instruct the jury

-- 9 of 12 --

10
that voluntary intoxication could also be considered in deciding whether Wollett intended
to assist, encourage or facilitate the commission of the assault. (See CALCRIM No.
404.)
A trial court has no sua sponte duty to instruct on voluntary intoxication but
when it does so, as in this case, the instructions must be correct. (People v. Mendoza,
supra, 18 Cal.4th at p. 1134; People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Here, the
instructions were incomplete but there is prejudicial error only if, based on the
instructions as a whole, it is reasonably likely the jury misconstrued the instructions as
precluding it from considering the intoxication evidence in deciding aiding and abetting
liability. (Mendoza, at p. 1134; Castillo, at p. 1017.) In addition, "'the court must reverse
only if it also finds a reasonable probability the error affected the verdict adversely to
defendant.'" (Mendoza, at pp. 1134-1135.) Here, there was no prejudicial error.
First, we conclude that the evidence of voluntary intoxication presented by
Wollett was insufficient to trigger any duty to instruct on voluntary intoxication. A
defendant is entitled to instruction on voluntary intoxication if there was substantial
evidence of intoxication that affected the existence of a required mental state. (People v.
Williams (1997) 16 Cal.4th 635, 677.) "Substantial evidence is evidence sufficient to
'deserve consideration by the jury,' that is, evidence that a reasonable jury could find
persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
Here, there is evidence that Wollett and others consumed a considerable
amount of methamphetamine during a multi-day period before the murder, but there is no
substantial evidence that Wollett was unable to form the intent to aid and abet the assault.
Based on the evidence, the trial court properly could have refused to instruct on voluntary
intoxication. (People v. Williams, supra, 16 Cal.4th at p. 677; People v. Marshall (1996)
13 Cal.4th 799, 848.)
Second, even if the trial court was required to instruct the jury that
voluntary intoxication could be considered in determining Wollett's mental state for
purposes of the assault, the jury necessarily decided the voluntary intoxication issue
adversely to Wollett in connection with the murder count. (People v. Haley (2004) 34

-- 10 of 12 --

11
Cal.4th 283, 314; People v. Heard (2003) 31 Cal.4th 946, 982.) The trial court instructed
the jury it could consider evidence of voluntary intoxication in deciding intent to kill and
premeditation. Despite the instructional error regarding the natural and probable
consequences doctrine, the jury found the evidence sufficient to convict Wollett of
premeditated murder. Therefore, the jury necessarily rejected the notion he lacked the
ability to form the specific intent to aid and abet the assault.
DISPOSITION
The judgment that Wollett committed premeditated and deliberate murder
is reversed. If, after the filing of the remittitur in the trial court, the People decide not to
retry Wollett for first degree premeditated and deliberate murder within the statutory time
limit, the trial court shall proceed as if the remittitur constituted a modification of the
judgment to reflect a conviction of second degree murder and shall resentence Wollett
accordingly. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.*
* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

-- 11 of 12 --

12
Dodie A. Harman, Judge
Superior Court County of San Luis Obispo
______________________________
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan
Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.

-- 12 of 12 --