P. v. Selitsch 5/15/07 CA1/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A114345

Case Date: 07/25/2007

Preview:Filed 5/15/07 P. v. Selitsch CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. KARL SELITSCH, Defendant and Appellant. (Mendocino County Super. Ct. No. SCUK CRCR 03-55715) A114345

Defendant and appellant Karl Selitsch appeals the sentence imposed following his guilty-plea conviction on the charge of conspiracy to commit burglary in the first degree, in violation of Penal Code sections 182, 459 and 460, subdivision (a).1 Appellant contends the trial court violated his Sixth Amendment right to a jury trial by imposing the aggravated term of six years based on facts determined by the trial court rather than by a jury. We agree. Accordingly, we vacate the sentence and remand for further proceedings. FACTS & PROCEDURAL BACKGROUND On the morning of October 29, 2002, a Mendocino County Sheriff's Deputy responded to a dispatch about a shooting on Branch Road, Hopland. En route, dispatch informed the deputy Hopland Tribal Police were already on the scene and had taken one suspect into custody. Upon arrival, the deputy saw Raymond Fallis lying dead on his

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Further statutory references are to the Penal Code unless otherwise noted. 1

front steps. A tribal police officer on the scene informed the deputy a suspect was seen leaving the scene of the crime and had been taken into custody at gunpoint. This suspect was later identified as Michael Depriest. On October 30, 2002, a detective received information from an anonymous source stating Depriest had been overheard planning to rob Fallis of coins and currency with the help of George Guertler and appellant. Depriest was brought from jail for questioning about this information. Depriest admitted he'd discussed the possibility of robbing Fallis with George Guertler and appellant, but averred it was just idle talk. Under further questioning, however, Depriest stated he and appellant had left the tribal casino on the day of the murder with the intention of going to Fallis' property to rob him. Depriest said appellant initiated the plan. According to Depriest, appellant handed him a bag containing gloves, a walkie-talkie, and the gun used to shoot Fallis. The plan was for Depriest to go to Fallis' residence on foot, subdue him at gunpoint, and then call appellant on the walkie-talkie. Appellant, parked nearby in his truck, would then come in to help tie up Fallis and look for the gold coins, which they believed were hidden in the residence. However, the plan went awry when Depriest shot Fallis during the course of the robbery.2 Subsequently, the police questioned George Guertler. Guertler said Depriest told him he (Depriest) had been approached by appellant to help rob a man. Appellant believed this man was storing gold coins stolen from the Shokowah Casino at his home. Depriest told Guertler appellant had an "Italian hit gun" with a silencer, which appellant kept at his home. According to Guertler, Depriest talked three or four times about going to steal the coins from the casino worker. Police also questioned Michael Frenier, a close friend of Depriest. Frenier said Depriest introduced him to appellant about one month before the murder. Appellant "freaked out" but Depriest assured appellant Frenier "was

Depriest pleaded nolo contendere to a second degree murder charge, admitted the special allegation the murder was committed during the commission of first degree burglary, and received a sentence of 40 years-to-life. 2

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cool." Appellant then outlined a plan to rob a man in Hopland. Frenier said appellant had drawn a map of the exterior of the victim's property. According to Frenier, the three drove to the victim's house to carry out the robbery, but aborted the plan because others were present at the residence. Frenier said he later came to his senses and pulled out of the plan. On April 27, 2004, the People filed an information charging appellant with premeditated murder, in violation of section 187, subdivision (a) [count 1]; first degree robbery, in violation of sections 211 and 212.5, subdivision (a) [count 2]; first degree burglary, in violation of sections 459 and 460, subdivision (a) [count 3]; and conspiracy to commit robbery, in violation of section 459 [count 4]. The information alleged four overt acts in furtherance of the conspiracy as well as two special allegations. At a change of plea hearing on March 9, 2006, the parties announced a negotiated plea which called for appellant to plead guilty to count 4 as amended to allege conspiracy to commit first degree burglary, in violation of sections 182, subdivision (a)(1) and 459. The plea also called for appellant to admit the first overt act alleged in the information as amended to state: "Said defendant, Karl Selitsch, discussed a plan to take coins with Michael Depriest and Michael Frenier." Under the plea, appellant would also admit overt act number four as amended to state: "Said defendant, Karl Selitsch, entered Raymond Fallis's residence with Michael Depriest and Michael Frenier to carry out the plan." The People agreed to dismiss all remaining counts in the interests of justice. The parties agreed the plea was open as to the sentence to be imposed. Before accepting the plea, the trial court advised appellant of, and appellant waived, his various constitutional rights. Regarding sentencing, the trial court also advised appellant as follows: ". . . The offense that you would be pleading guilty to today has a maximum confinement time of up to six years state prison. You could be sentenced to two years which is the mitigated term, four years which is the mid term, or six years which is the aggravated term. [

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