People v. Cleveland

• Decision Date: 19 September 1972
• Docket Number: Cr. 20130
• Citation: 104 Cal.Rptr. 161,27 Cal.App.3d 820
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hammond CLEVELAND, Defendant and Appellant.

Page 161

104 Cal.Rptr. 161

27 Cal.App.3d 820

The PEOPLE, Plaintiff and Respondent, v. Hammond CLEVELAND, Defendant and Appellant.

Cr. 20130.

Court of Appeal, Second District, Division 4, California.

Sept. 19, 1972.

As Modified Oct. 6, 1972.

Richard S. Buckley, Public Defender of Los Angeles County, James L. McCormick, Seymour Weisberg, and Dennis A. Fischer, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Russell Iungerich and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Originally, defendant was charged as follows: (count I), kidnaping, in violation of section 207 of the Penal Code; (count II), kidnaping for the purpose of robbery, in violation of section 209 of the Penal Code; (count III), robbery, in violation of section 211 of the Penal Code; (count IV), assault with intent to commit murder, in violation of section 217 of the Penal Code; (count V), grand theft in violation of section 487, subdivision 3, of the Penal Code; (count VI), violation of section 10851 of the Vehicle Code. By amendment, defendant was charged with a prior felony conviction (Pen.Code, § 496). Criminal proceedings were suspended after defendant was examined by two psychiatrists, because the court declared doubt as to defendant's sanity. After a certification of sanity was received by the court, Doctors Tweed and Davis were then appointed to examine defendant in regard to his sanity, and the court found defendant able to stand trial. A plea of not guilty by reason of insanity was entered; Dr. Bielinski was appointed to examine defendant's sanity. Count I was dismissed. ¹

Criminal proceedings were again suspended due to present insanity. After a further report, the court found defendant presently sane. Trial by jury was had; defendant was found guilty of kidnaping for robbery where the victim was subjected to bodily harm. Defendant was found guilty of counts II--V, and he was found armed during the commission of count II. A sanity hearing was held, defendant was found sane during the commission of offenses charged in counts I, II and IV and insane during the commission of offense charged in count III. The jury determined the penalty for kidnaping for purpose of robbery to be life imprisonment without possibility of parole.

Mr. Givhan, the victim, was returning from a friend's house, when he saw a woman sitting in a car with the hood up. She was waiving her hands and he stopped to help. He asked what the trouble was and two men, one of whom was defendant, 'appeared out of nowhere.' Mr. Givhan gave them all a lift and during the trip defendant and the others were friendly. The men got out of the car, and defendant put a gun to Givhan's head. Mr. Givhan was ordered out of the car and told to take off his shoes and socks and to give defendant his wallet. Twice defendant said Givhan 'was as good as dead.' Defendant ordered Givhan into the trunk of the car, and Givhan heard the woman reading his name and address. While Givhan was in the trunk, they drove around for one-half hour. Then they raised the trunk and Givhan saw that they were in front of his apartment building. They closed the trunk and returned an hour later. Defendant was then wearing Givhan's clothes. They stopped for gas and Givhan tried to make noise. They drove for about another hour and Givhan heard defendant tell the woman that defendant wanted to beat Givhan to death with the jack. The woman said that beating Givhan to death would not kill him instantly, so she suggested shooting him instead. Mr. Givhan removed a tail light hoping to draw attention to the vehicle. Defendant opened the car in a desolate area and told Givhan to walk up the hill. Givhan's bare feet were cut by broken glass and sticks. Defendant shot Givhan two times in the back, then defendant stood over him and shot him in the wrist, below the ear, and in the left side. Defendant walked off and Givhan lay there for about an hour. Givhan crawled off, and a woman in a passing car called an ambulance. The defendant was found and arrested; the victim survived.

During the sanity phase of the trial, several psychiatrists testified. Dr. Tweed testified that defendant was mentally ill and that, due to an excessive benzedrine intake, defendant had a paranoid schizophrenic reaction. Dr. Tweed testified that defendant was legally insane in that he was incapable of knowing the nature of his act or defendant had a condition which made him incapable of knowing that his act was wrong.

Dr. Davis testified that defendant had symptoms suggesting paranoid schizophrenia and that defendant was insane at the time of the offenses and that he didn't understand the quality of his act. Dr. Davis said defendant was 'in partial remission and had improved.'

Dr. Bielinski testified that defendant was not schizoid and that defendant knew what he was doing at the time he did it, and that at the time of the commission of the act, defendant knew right from wrong.

Dr. Walters testified that, based on his personal interview with defendant, defendant knew the nature and quality of his act, and he knew his act was wrong, and defendant was not schizophrenic. Defendant had a character disorder.

Dr. Owre testified that defendant was simulating paranoid thinking and that defendant was merely malingering in order to be a patient instead of a prisoner.

Dr. Abe and defendant's cousin, Mrs. Warmsley, testified for the defendant on the sanity issue.

Of the doctors who testified, Drs. Walters and Owre were retained by the prosecution. The other doctors, we are advised, were court-appointed.

I

Defendant argues that he was improperly convicted of kidnaping to commit robbery (Pen. Code, § 209).

Defendant first argues that the Daniels instruction was error in the light of the Supreme Court decision in People v. Timmons (1971) 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648, and in the light of the intervening burglary of the victim's residence. In People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225, the court held that the intent of the Legislature in 1931, when it amended Penal Code section 209, was to exclude from the statute coverage of those robberies 'in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.' The jury in the case at bench was instructed on Penal Code section 209 in light of the Daniels decision. In the subsequent decision of People v. Timmons, Supra (1971) 4 Cal.3d 411, 414, 93 Cal.Rptr. 736, 482 P.2d 648, the court elaborated on the test for a violation of Penal Code section 209, stating that the proper test for conviction under section 209 requires that the movement substantially increases the risk of physical harm over and above those to which a victim of the underlying crime is normally exposed. A slight increase in the risk of harm beyond that inherent in the commission of the robbery is insufficient for a violation of Penal Code section 209. The Timmons court held that a 5 block asportation where the police were not in hot pursuit, there was no high speed chase, and where the defendant had no weapon and neither victim suffered harm did not amount to a violation of Penal Code section 209. There was no error below in giving the Daniels instruction on Penal Code section 209 since the jury was instructed that the increase in the risk of harm must be substantial. Timmons merely elaborated on and explained the test of Daniels. Timmons did not change the Daniels rule.

Defendant also appears to argue that the holding in Timmons precludes a finding of guilt below. Timmons is to be distinguished from the case at bench, since in Timmons there was no use of weapons and no danger to the victim in the 5 block asportation, and in the case at bench there was a substantial increase in the risk of harm during the asportation. Defendant argues that where the victim is moved to his own house, as opposed to a place of temporary safety, as in In re Bryant (1971) 19 Cal.App.3d 933, 97 Cal.Rptr. 40, or to a more secluded spot, as in People v. Rocco (1971) 21 Cal.App.3d 96, 98 Cal.Rptr. 365 the risk of harm is not substantially increased and in fact the victim is more likely to get help at his own house from a milkman or neighbor. We do not agree that the risk of harm is not substantially increased. Although it was true that the victim may have gotten help at his house, it is also true that the additional one-half hour asportation, with weapons in defendant's possession, and under threats that the victim was 'as good as dead,' substantially increased the risk of harm to the victim. Again, this is to be distinguished from Timmons where the victim was not threatened and there were no weapons. The mere possibility that a victim may get help during the asportation does not negate the increase in the risk of harm that an otherwise dangerous type of asportation may create.

Defendant argues that the intervening burglary of the victim's home precludes a finding that the kidnaping was to commit robbery in violation of Penal Code section 209, and also that the jury was not properly instructed on the effect of that intervening burglary. The jury was instructed on the definition of kidnaping for the purpose of robbery, and the jury was instructed that simple kidnaping was a lesser included offense to kidnaping for the purpose of robbery. The jury was instructed that if they had a reasonable doubt as to the purpose of the movement, they could find defendant guilty of only simple kidnaping. That instruction dealing with a reasonable doubt as to the purpose of the movement, read together with the other instructions, properly permitted the jury to consider the effect of...