People v. Beaumaster

Decision Date27 May 1971
Docket NumberCr. 18527
Citation17 Cal.App.3d 996,95 Cal.Rptr. 360
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Howard Edward BEAUMASTER and Joseph Paul Chapman (aka Mark Edward Moore), Defendants and Appellants.

Kathleen J. Kirkland, Alhambra, under appointment by the Court of Appeal, for defendant-appellant Howard Edward Beaumaster.

Alan Douglas, Douglas, Pendleton & Applebaum, San Diego, under appointment by the Court of Appeal, for defendant-appellant Joseph Paul Chapman (also known as Mark Edward Moore).

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Allan J. Besbris, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendant Chapman (also known as Moore) was charged with 9 felony counts. Defendant Beaumaster was charged with the same first 7 felony counts as Chapman, and was also charged with two prior felony convictions. The counts are as follows, with each count except V, VII and IX also alleging that defendants committed the respective offense while armed with a .38 caliber revolver (a violation of Pen.Code §§ 3024 and 12022):

Count I: Kidnaping for the purpose of robbery (a violation of Pen.Code § 209); additionally alleging that the victim suffered bodily harm;

Count II: Oral copulation (a violation of Pen.Code § 288a);

'Count III: Robbery (a violation of Pen.Code § 211);

Count IV: Assault with intent to commit murder (a violation of Pen.Code § 217);

Count V: Assault with a deadly weapon upon a peace officer (a violation of Pen.Code § 245(b));

Count VI: Assault with intent to commit murder (a violation of Pen.Code § 217);

Count VII: Assault with a deadly weapon upon a peace officer (a violation of Pen.Code § 245(b));

Count VIII: Assault with intent to commit murder (a violation of Pen.Code § 217) Count IX: Assault with a deadly weapon upon a peace officer (a violation of Pen.Code § 245(b)).

Defendants pleaded not guilty, and they personally and all counsel waived trial by jury. Beaumaster denied th prior felony convictions, and his motion under Penal Code section 995 was denied. Defendants were found guilty as charged in Counts I, 1 II, III, IV, and VI, and not guilty of the other counts. Defendants were found to be armed at the time of commission of the offenses and under circumstances to bring them within Penal Code sections 3024 and 12022 for Counts II, IV and VI, but not within those sections for Counts I and III. Chapman was found to be armed when arrested, while Beaumaster was found not to be armed when arrested. One of Beaumaster's prior felony convictions was found to be true. His motion for a new trial was denied. Probation was denied both defendants. Counts II, III, IV, and VI were ordered merged into Count I. Defendants were sentenced to state prison for the term of their natural lives, with possibility of parole, on Count I, and for the term prescribed by law as to the merged counts. Beaumaster's sentence was ordered to run concurrently with any existing federal sentence. Chapman's sentence was ordered to run concurrently with any sentence theretofore imposed by any other court.

On the evening of May 27, 1969, Mrs. J. went to a laundromat near her home to do her laundry. While she was in the laundromat and alone, Chapman walked in, looked around, and picked up Mrs. J.'s purse from a table where she had placed it. He asked if it was hers. She told him it was, and Chapman asked her to come with him. She hesitated, and Chapmen pulled out a gun and pointed it at her, causing her to fear for her life. He directed Mrs. J. to a vehicle parked directly in front of the laundromat. When she asked him why he was taking her, he said, 'Be quiet, or I'll blow your head off.' Mrs. J. then got in the vehicle, which had the motor running, and sat between the driver (Beaumaster) and Chapman. They drove onto an adjacent freeway, and Mrs. J. asked them what they wanted. Champman's response was, 'Don't worry, we are not going to hurt you. We just want your money.' Chapman went through her purse. Beaumaster asked Mrs. J. how much money she has and if she had any rings or jewelry of value in her purse, and she told him she only had five dollars. Beaumaster became angry and said that because she only had five dollars she would have to go down on them both. Chapman handed Beaumaster the gun, and tied Mrs. J.'s hands behind her back; Beaumaster, with the gun at her head, forced Mrs. j. to commit oral copulation. 2 While this was going on, Chapman had his hand up her dress and was fondling and caressing her thighs. Beaumaster later told her to straighten up, and handed the gun to Chapman. When she straightened up, Mrs. J. observed the reflection of red flashing lights. The car stopped, and Los Angeles City Police Officer Proctor approached the car. He ordered Beaumaster out of the car. When Beaumaster got out, Officer Proctor noticed that Beaumaster's pants were open. While Officer Proctor was talking to Beaumaster, Los Angeles Police Sergeant Conver arrived, in answer to Proctor's prior call for cover. Conver walked to the passenger side of the vehicle and asked Chapman to get out. Chapman got out, pointing his revolver towards Officer Conver's face, and said, 'Don't move, don't move!' Conver ducked to the right and ran back to his vehicle, shouting to Proctor, 'Look out, Vance, he has a gun.' Chapman fired the first shot. Proctor then drew his revolver and fired four shots in Chapman's direction, and ducked behind his vehicle. Chapman was standing at the open passenger door when Proctor fired. An exchange of gunfire ensued. Mrs. J. managed to get out of the car just at the time of the exchange of shots, and she was struck in the neck and chest. Chapman got in the car and drove off. Mrs. J. was on her knees, in the street, with her hands tied behind her back when Chapman escaped. He was later apprehended in the manner which gave rise to the two counts (VIII and IX) of which he was found not guilty. Beaumaster was lying on the ground during the firing, and remained there until he was handcuffed.

Both defendants appeal from the judgment of conviction. Beaumaster contends: (1) there is insufficient evidence of conspiracy or aiding and abetting to sustain his conviction for assault with intent to commit murder; (2) the evidence is insufficient to sustain his conviction of kidnaping for the purpose of robbery; (3) he could not be convicted of both kidnaping and oral copulation since they were both a part of the same course of conduct. Chapman contends that: (1) he did not receive a fair trial because the trial judge did not disqualify himself, as was required by his having been involved in defendant's change of plea from guilty to not guilty before trial; (2) his counsel was incompetent in that he failed to have the court disqualify itself, thereby reducing his trial to a farce and a sham.

Beaumaster's first two contentions are based on insufficiency of the evidence. An appellate court must view the evidence in the light most favorable to the prevailing party, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Mosher, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) All that is necessary is that the circumstances reasonably justify the findings by the trier of fact. Even if the reviewing court is of the opinion that the circumstances might also be reasonably reconciled with a contrary finding, this does not warrant a reversal of the judgment. (People v. Reilly, Supra; People v. Hillery, 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Robillard, 55 Cal.2d 88, 93, 10 Cal.Rptr. 167, 358 P.2d 295.) The appellate court must determine whether a trier of fact could have reasonably found that the prosecution sustained its burden of proving defendant guilty beyond a reasonable doubt. (People v. Reilly, Supra; People v. Redmond, Supra; People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777.) Beaumaster claims that he withdrew from any conspiracy by submitting to a search and by his general cooperation with the police when stopped. A defendant's failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal; there must be an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the co-conspirator. (People v. Crosby, 58 Cal.2d 713, 730, 25 Cal.Rptr. 847, 375 P.2d 839; People v. Moran, 166 Cal.App.2d 410, 415--16, 333 P.2d 243; see also Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114.) A failure to complete a crime because of threatened arrest or the appearance of the police is not such a free and voluntary act as to constitute an abandonment. (People v. Walker, 33 Cal.2d 250, 258, 201 P.2d 6; People v. Corkery, 134 Cal.App. 294, 297, 25 P.2d 257.) Each member of the conspiracy is liable as such for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design. Liability extends to acts unintended or even actually forbidden by a co-conspirator. (See People v. Smith, 63 Cal.2d 779, 794, 48 Cal.Rptr. 382, 409 P.2d 222.) Defendant did not communicate any withdrawal to his partner in crime. He was apprehended by the police, and his 'abandonment' (if it can be so classed) was not voluntary. He, in fact, handed the gun to Chapman, and the probable consequences of this act are chargeable to Beaumaster. We cannot find that there was insufficient evidence to sustain Beaumaster's conviction of assault with intent to commit murder. 3

Beaumaster's second contention is that it was unreasonable to find that the kidnaping was for the purpose of robbery. Defendant argues that...

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