People v. Fortman

• Decision Date: 15 December 1967
• Docket Number: Cr. 12820
• Citation: 257 Cal.App.2d 45,64 Cal.Rptr. 669
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Charles FORTMAN, Tim Lawrence Hartman, Defendants and Appellants.

Page 669

64 Cal.Rptr. 669

257 Cal.App.2d 45

The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Charles FORTMAN, Tim Lawrence Hartman, Defendants and Appellants.

Cr. 12820.

Court of Appeal, Second District, Division 2, California.

Dec. 15, 1967.

Rehearing Denied Jan. 12, 1968.

Hearing Denied Feb. 8, 1968.

Harvey Giss, Los Angeles, by appointment of the Court of Appeal, for appellant, Fortman.

Daniel L. Dintzer, Los Angeles, by appointment of the Court of Appeal, for appellant Hartman.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Richard D. Huffman, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Appellants were charged by information with one count of robbery (violation of Penal Code, § 211) and one count of murder (violation of Penal Code, § 187). They were convicted by a jury of attempted robbery (Penal Code, § 664) and first degree murder (Penal Code, § 189). Motions for new trial were denied. The court fixed the penalty for each appellant on the murder charge at life imprisonment. The sentences for attempted robbery as to each appellant were suspended pending appeal and the serving of the murder sentences.

Appellant Fortman appeals from the judgment and order denying his motion for a new trial. The appeal from the order is dismissed. (Penal Code, § 1237(2)). Appellant Hartman appeals from the (judgment of) conviction.

On January 29, 1966 at approximately 9:00 p.m. Charles Cirk, the victim, received injuries from a beating. At 5:00 p.m. on February 4, 1966, Cirk died.

Numerous witnesses placed appellants at the scene of the crime in Long Beach. Each was wearing one black glove. Some observed appellants kicking the prone figure of Cirk. Another witness testified that he saw one of the appellants hold the victim while the other hit him in the stomach and kicked him. Another witness testified that she saw men of appellants' description kneeling over the victim and appear to search through his pockets. Cirk was seen by several, lying on the ground, badly beaten with his pockets pulled out.

Appellants were arrested at about 9:10 p.m. on January 29. Each was wearing one black glove and the only money which each had, was a one-dollar bill.

Officer Denham talked with the victim shortly after the beating in the emergency room of a hospital. The officer testified that Cirk appeared to be out of breath, taking deep gasps and appeared badly beaten. Twice the victim told the officer that he believed that he was going to die. Cirk said that he had been assaulted at the corner of Third and Locust and then walked south toward the ocean on Locust to the location where the police called an ambulance. He said that, 'That's where the two guys beat and kicked me.' The victim added that they stole two one-dollar bills from his pants pocket. He said that both assailants were white and that each wore one black glove. At approximately 12:15 a.m., Cirk repeated this story to another police officer.

The victim died on February 4 following surgery performed to relieve pressure on his brain. His death was caused by hematoma in the brain which was brought on by blows on his head. Cirk had previously suffered a stroke which paralyzed his right arm and impaired his speech and hearing. However, it was testified that this condition by itself does not normally cause the type of hemorrhaging which resulted in the victim's death.

Sergeant McMahan testified that at 2:15 p.m. on February 1, 1966, two days after the arrest, he had a conversation with appellant Hartman at the police station. Prior to questioning, Hartman was advised of his constitutional rights and he was told that the crime could involve the gas chamber. Appellant first said that he could not recall his arrest because he was too drunk at the time. After further discussion, he stated: 'All right. I remember walking, and I seen this guy with a hat on and said, 'Let's roll him.' * * * But I remember going through his pockets, and I didn't get a dime. He didn't have any money * * *.'

Hartman repeated substantially this same statement 45 minutes later to Officer William Stovall.

Hartman testified in his own behalf at trial. He said that he and Fortman had recently arrived from Cleveland by way of Fort Wayne, Indiana and Dallas. On January 29, they worked at the Purple Heart Veteran's Service soliciting contributions and were paid two dollars each. Appellants took their two dollars and bought cigarettes, pooled their money and bought one-half gallon of wine. They went to their hotel and drank the wine. Hartman did not recall leaving the hotel. He did remember that after drinking the wine, he was involved in a fight, but could not recollect where or with whom he fought. He did not remember being arrested nor did he recognize the victim. He denied making any incriminating statements to the police. He stated that he was in pain at the time of his questioning because of a dislocated elbow which he had suffered during his arrest. He said he thought he had been arrested for public intoxication.

Appellant Fortman having been fully advised of his constitutional rights, stated in substance that he had been drinking, blacked out and that all he could remember was seeing an old man lying on the ground. He testified in his own behalf and substantiated much of Hartman's testimony and said that he recalled seeing an old man on the sidewalk and recalled Hartman fighting with someone.

The bookkeeper of the Purple Heart Veteran's Service testified that she gave each appellant two dollars in cash on January 29. She stated that they usually paid in currency although coins were used on occasion.

Appellants contend that the instructions given on the subject of intoxication were prejudicially erroneous.

It is now well established in this state that substantial evidence of mental illness short of legal insanity, is a significant factor in negating the specific legal intent essential to an offense. (People v. Wells, 33 Cal.2d 330, 202 P.2d 53; People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911.) Under this rule, if murder is charged and it is shown that the defendant, though legally sane, was suffering from a diminished mental capacity caused by intoxication, trauma or disease which prevented his acting with malice aforethought or with premeditation and deliberation, he cannot be convicted of murder in the first degree. (People v. Henderson, 60 Cal.2d 482, 490--491, 35 Cal.Rptr. 77, 386 P.2d 677.) If malice is lacking, the defendant cannot be found guilty of an offense greater than manslaughter. (People v. Conley, supra.) When evidence is introduced supporting diminished capacity, the court must, on its own motion, instruct the jury as to its legal effect. (People v. Henderson, supra, 60 Cal.2d at page 491, 35 Cal.Rptr. 77, 386 P.2d 677.)

Appellants were each convicted of attempted robbery and first degree murder. If the jury found that the murder was perpetrated during the course of the attempted robbery, findings of malice and deliberation and premeditation were not necessary. (Pen.Code, § 189; People v. Coefield, 37 Cal.2d 865, 868--869, 236 P.2d 570.) Since appellants' conviction was based on the felony-murder doctrine, failure to have instructed the jury on the diminished capacity rule in respect of first degree murder, would not have constituted error since specific intent is supplied by the robbery and separate proof of an intent to commit murder is not a requisite element to sustain a charge of murder which occurred as part of the robbery. (People v. Ford, 65 Cal.2d 41, 54--58, 52 Cal.Rptr. 228, 416 P.2d 132.)

Appellants' first degree murder convictions were based on the felony-murder doctrine and not on premeditation and deliberation. Instructions to the effect that first degree murder is chargeable where the killing was perpetrated during the course of robbery or attempted robbery were properly given. (CALJIC 317 and CALJIC 302--F (revised).) The trial court gave no instructions on premeditation and deliberation and none were requested. The court also gave instructions on manslaughter and in instructing the jury on the definition of second degree murder, references to killing with premeditation and deliberation were deleted. They did include references to killing during the course of a felony.

The statements made to the policy by Hartman were the sole evidence of intent and they reveal an intent to commit a robbery and not a murder. Hartman told Sergeant McMahan that before the attack he stated to his accomplice: 'Let's roll him.' He later told Sergeant Stovall: 'I could have said, I could have said, 'Let's roll him.' I could have said, 'Let's see if he has any money.' I just don't remember what I said.'

The prosecution made no attempt to show that an intent to murder the victim was reached by appellants after a period of calculation or reflection.

Since no specific intent was necessary for the first degree conviction, failure of the court to gove instructions on diminished capacity in respect of murder were harmless. However, instructions on diminished capacity were necessary as to the specific intent to commit robbery. As to this, the court correctly gave CALJIC 78 (revised) and 78--B. Determination of whether appellants had the requisite intent was one for the jury. We are bound to view the evidence most favorably in support of the judgment. (People v. Ford, 65 Cal.2d 41, 51, 52 Cal.Rptr. 228, 416 P.2d 132.)

Appellant Hartman did not argue against or object in the trial to the admission of incriminating statements he made to the police, nor did he present any evidence that they were involuntary. He now contends that the trial court erred in admitting the statements and in failing to instruct the jury on the question of whether they were voluntary.

The prosecution satisfied its burden by laying a foundation as to the free and voluntary nature...