People v. Asher, Cr. 6623

CourtCalifornia Court of Appeals
Writing for the CourtSIMS; MOLINARI, P.J., and ELKINGTON
Citation78 Cal.Rptr. 885,273 Cal.App.2d 876
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. William Walter ASHER, Victor Franklin Carrafa and William Henry Williams, Defendants and Appellants.
Docket NumberCr. 6623
Decision Date12 June 1969

Page 885

78 Cal.Rptr. 885
273 Cal.App.2d 876
PEOPLE of the State of California, Plaintiff and Respondent,
William Walter ASHER, Victor Franklin Carrafa and William Henry Williams, Defendants and Appellants.
Cr. 6623.
Court of Appeal, First District, Division 1, California.
June 12, 1969.
Hearing Denied Aug. 6, 1969.

Page 887

[273 Cal.App.2d 882] Gordon L. Graham, San Francisco, for appellant Asher: (By appointment of the Court of Appeal).

Kerry M. Gough, Bonjour & Gough, Oakland, for appellants Carrafa and Williams: (By appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John T. Murphy, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

William Walter Asher, Victor Franklin Carrafa and William Henry Williams have each appealed from separate judgments of conviction of murder of the first degree, sentencing them to state prison, with varying prior convictions. The judgment were entered after a bifurcated jury trial in which the jury found each defendant guilty of the murder in the first degree of John Kammeyer on December 8, 1960, and fixed the penalty at life imprisonment.

The uncontradicted evidence shows that Kammeyer, the manager of a bar, was fatally shot by Williams, and that the three defendants robbed the bar and its patrons. The evidence was conflicting as to whether the intent to rob the establishment was formulated before or after the shooting. Evidence also was introduced to show that Williams was incapable of harboring malice aforethought or the intent to kill or rob because of mental disease, defect and intoxication. Insofar as is material the evidence on these issues is referred to below.

Each of the defendants contends (1) that the evidence is insufficient to sustain the verdicts and judgments, (2) that the court erred in failing to give instructions on manslaughter, and (3) that the court erred in failing to submit separately to the jury the question of whether any defendant

Page 888

could be found guilty of robbery as a lesser included offense. (4) Carraffa and Williams additionally claim that the court's [273 Cal.App.2d 883] instructions on the effect of intoxication were erroneous, and (5) that the court erred in admitting evidence of their commission of an earlier offense. (6) Carraffa and Asher each assert error in the findings concerning their respective prior convictions, and (7) Asher complains of irregularities in connection with the hearing and denial of his motion for a new trial.

An examination of these contentions reveals that with the exception of an error in the designation of a prior conviction found to have been suffered by Asher, there is no prejudicial error in the record, and the judgments must be affirmed with the exception of the finding that Asher suffered a prior felony conviction.

Sufficiency of the Evidence

'Under the felony-murder rule of section 189 of the Penal Code, a killing committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under section 288 is murder of the first degree. This is true whether the killing is wilful, deliberate, and premeditated or merely accidental and whether or not the killing is planned as a part of the commission of the robbery. (Citations.)' (People v. Lookadoo (1967) 66 Cal.2d 307, 314, 57 Cal.Rptr. 608, 613, 425 P.2d 208, 213. See also People v. Willingham (1969) 271 A.C.A. 635, 648--649, 76 Cal.Rptr. 760; People v. Baglin (1969) 271 A.C.A. 468, 473, 76 Cal.Rptr. 863; People v. Lilliock (1968) 265 A.C.A. 465, 477, 71 Cal.Rptr. 434; People v. Chapman (1968) 261 Cal.App.2d 149, 165, 67 Cal.Rptr. 601; People v. Fortman (1967) 257 Cal.App.2d 45, 51 and 55, 64 Cal.Rptr. 669; and People v. Sievers (1967) 255 Cal.App.2d 34, 38--39, 62 Cal.Rptr. 841.)

The testimony shows that the defendants entered the bar about 7 or 7:30 p.m. and first occupied and thereafter spent most of their time in the vicinity of three bar stools at the far end of the bar, away from the entrance and near the rest rooms and rear office. They drank, conversed with other patrons in the bar, moved about the bar, occasionally left the premises and returned, displayed large amounts of cash in big denominations, and shook dice for drinks and music. They ordered mixed drinks, and notwithstanding the duration of their stay, none of them appeared to be intoxicated. The bartender noticed that they appeared nervous. He thought they might do something, and called a friend to come over.

[273 Cal.App.2d 884] The manager and the owner, who had left the bar together earlier in the evening, returned around 10:30 p.m. or sometime earlier. At the bartender's request Kammeyer went to the safe in the back office and got some change. After this transaction had been completed one of the defendants asked him if he wanted to shake dice for $100. Kammeyer declined saying he only had $20 of his own money. The bartender heard the manager call the defendants 'punks' or 'bums' when he was urged to roll the dice. Kammeyer also got into an argument with a patron about a loan. During this altercation the defendants impliedly advised the bartender that they would assist him if he needed help in quieting the altercation. According to the bartender, by 11 o'clock things had quieted down and there was no contact between Kammeyer and any of the defendants after the earlier incident.

At almost the stroke of midnight the defendants opened their coats and withdrew weapons. Williams had a sawed-off shotgun which a patron recognized as a 12-gauge single barrel weapon. Asher and Carrafa had pistols. Williams said, 'This is a holdup. Don't make a move, and don't anybody to anything wrong. Put your hands on top of the bar.' Williams walked up to Kammeyer saying, 'I'll show you who to call a punk.' He put the shotgun in Kammeyer's back, pressed the trigger and the weapon discharged. Kammeyer fell, mortally wounded.

The bartender heard Williams threaten to do the same to anyone who interfered 'because you only die once.' Then, apparently to the dying Kammeyer, Williams said,

Page 889

'You didn't know who you were fooling with, Baby.'

The owner moved to help Kammeyer but Williams told her to get back. A voice said, 'What did you do that for?' Two patrons thought they heard the owner and the bartender say these words. The bartender thought they came from Carrafa. Williams replied, 'I'm going to pay for this.' The defendants each cautioned the patrons, 'Everybody keep still. Nobody else will get shot.'

The bartender and the owner heard the announced holdup before Williams shot Kammeyer. Other patrons who testified were apparently unaware of what was happening until their thoughts or conversations were interrupted by the blast of the shotgun.

Kammeyer was moaning, 'I'm dying; I'm dying; I've been shot.' Williams demanded money from the bartender who complied by giving him bills and checks worth about $418. Williams then directed either Asher and Carrafa to [273 Cal.App.2d 885] empty the cash register of the change. Williams reloaded the shotgun and took a position guarding the entrance door. The bartender asked him if he wanted the front door closed and Williams replied, 'No; leave the door open. We want the business operating as normal.'

Carrafa, gun in hand, emptied the cash register. Carrafa or Asher then said, 'Let's get that safe open.' Williams told the bartender that he picked 'The New Hearth' for the robbery because they had been there on Friday night and had seen the receipts, which they thought by Sunday would total some $1200--$1500.

Asher, armed with a pistol, pulled the owner back toward the office where the safe was located. She did not have a key to the office door and Asher broke down the door. Asher said that they expected to find $2000 in the safe. The owner explained that she did not know how to open the safe. She tried to open it while Asher and Carrafa moved in and out of the office. Both also worked on the safe.

About five minutes later, Asher and Carrafa came out and dragged the bleeding and moaning Kammeyer into the office. As they did so they abused him. Asher kicked him in the ribs; Caraffa kicked him in the stomach. Inside the office Kammeyer, barely conscious, tried to give them the combination. He was kicked and shoved. The bartender went in and offered to help. Kammeyer gave numbers but the bartender could not get the safe open. The owner pleaded that Kammeyer was bleeding to death. Asher replied, 'I know. That punk is trigger-happy. He's going to be sorry he did this.' Picking up some rubber gloves, he wiped off the safe and the combination dial.

During and after the attempt to open the safe the patrons in the bar were systematically robbed. Williams continued to guard the door and had also armed himself with a 'cutting knife.' The bartender told Williams that the police often came in and Williams replied, 'From where I am standing I will blow a hole in their back(s). They won't have half a chance. I hope they do come in.' A patron heard him express the same hope, adding, 'I would just like to smoke me one of them.' The same patron fearing that Williams would shoot the first person to enter, exclaimed that a friend was due to arrive. Asher, pointing a gun at the patron's head, came up and hit him over the head, knocking him off the bar stool.

At about 12:15 a lady called the bartender and Williams answered the telephone. Williams told her that the bartender [273 Cal.App.2d 886] had gone out for a sandwich. About 15 minutes later she entered the bar only to be grabbed by Williams. The bartender yelled, 'That is my wife.' Asher, coming out of the rear office, told Williams to leave her alone.

A patron stepped in at about 12:30 a.m. and he also was jumped by Williams. He was told to put his wallet on the bar 'or you're dead.' Asher, holding a gun, came up and kicked him in the groin. A second customer who came in at 12:45 a.m. to


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