People v. Hamilton
| Decision Date | 31 December 1985 |
| Citation | 221 Cal.Rptr. 858,41 Cal.3d 211 |
| Court | California Supreme Court |
| Parties | , 710 P.2d 937 The PEOPLE, Plaintiff and Respondent, v. Billy Ray HAMILTON, Defendant and Appellant. Crim. 22311. |
Frank O. Bell, Jr. and Quin Denvir, State Public Defenders, under appointment by the Supreme Court, Musawwir Spiegel, Deputy State Public Defender, and Louis N. Hiken, Davis, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Edmund D. McMurray, Ward A. Campbell and Ronald S. Prager, Deputy Attys. Gen., for plaintiff and respondent.
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This is an automatic appeal from a judgment of death imposed under the 1978 death penalty law (Pen.Code, §§ 190.1-109.4) 1 Appellant, Billy Ray Hamilton, was convicted of three counts of first degree murder ( §§ 187, 189), one count of attempted robbery ( §§ 211, 664), and two counts of assault with a deadly weapon ( § 245, subd. (a).) 2 As to each murder count, three special circumstances were found true: two multiple murder findings based on the two other murder verdicts ( § 190.2, subd. (a)(3)), and a finding that the murder was committed in the course of a robbery or attempted robbery. ( § 190.2, subd. (a)(17)(i).)
Appellant's assignments of error concerning the guilt verdicts are without merit. However, the special circumstance findings must be set aside because the jury was not instructed to find an intent to kill as required in Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 and People v. Turner (1984) 37 Cal.3d 302, 329, 208 Cal.Rptr. 196, 690 P.2d 669. Accordingly, the judgment of death must be reversed.
On Thursday, September 4, 1980, just before the 8 o'clock closing time, appellant and Connie Barbo entered Fran's Market and purchased several items. They returned at three minutes to 8 the following evening. No other customers remained, and the employees were closing the store. One of the clerks locked the front door after appellant and Barbo entered. The couple got a shopping cart and went back to the meat counter where Joe Rios, who had handled their purchases the night before, wrapped up several items for them.
Rios then returned to sweeping the aisles, but kept an eye on appellant and Barbo because he suspected that they might shoplift. However, after watching them go down several aisles and put items in a shopping cart, Rios decided they were not planning to steal. He went back to the stock room at the rear of the store.
As Rios walked into the room, he noticed his fellow employees--Douglas White, Bryon Schletewitz, and Josephine Rocha--walking in behind him. Then he noticed that appellant and Barbo were following, holding a sawed-off shotgun on them. All the employees were ordered to lie on the stock room floor.
Appellant ordered White into the freezer to open the safe. White protested that there was no safe in the freezer. During this exchange, appellant addressed White as "Bryon." Bryon Schletewitz identified himself and offered to open the safe. He led appellant to a room behind the freezer where the safe was located. Barbo continued to hold a shotgun on the other employees in the stockroom.
From where he lay, Rios could hear some scuffling between Schletewitz and appellant. Appellant said, "You better not get a gun" and there was sound like a loud bang. Appellant emerged from behind the freezer and said to White, "Okay, big boy, where is that safe?" White said he didn't know. Appellant shot him in the chest.
At that point Rios made a dash for the bathroom and tried to lock himself in. Josephine Rocha was still sitting on the stockroom floor. From inside the bathroom, Rios heard another shot. Then the bathroom door opened and appellant fired at Rios. Rios raised his left arm to cover his face, and sustained severe injuries to the arm and elbow.
Rios then heard appellant say, "Let's go, babe," and heard appellant and Barbo go to the front of the store. Emerging from the bathroom, Rios saw the other three employees on the floor. The robbers were trying to get out the locked front door as Rios raced out the back door. A voice called out to him to halt and a shot was fired, but Rios kept running until he found someone who would call the police and an ambulance.
Jack Abbott lived immediately behind Fran's Market. When he heard the shots, he got his shotgun and ran toward the store as Rios ran out. Not knowing who Rios was, Abbott yelled at him to stop and fired a round into the air. When Rios continued to run, Abbott went into the store. He saw the bodies of Doug White and Josephine Rocha and went back to his house to call an ambulance.
As Abbott was leaving the store, he was shot in the left hip. He turned and saw the man who shot him standing in the doorway. He shot back as the man ran towards his car. The man groaned and stumbled as he got in the car and drove away. At trial, Abbott testified that the man had the same physique as appellant.
The police arrived on the scene just before 8:30. They found Barbo leaning against the door of the bathroom. Her revolver was found in the toilet tank. Josephine Rocha, Douglas White, and Bryon Schletewitz died from massive shotgun wounds.
Several days after the event, Rios picked appellant's picture out of a photographic lineup. Rios was confident of his identification since he had seen appellant and Barbo on two successive evenings. He testified that when they entered the store on Friday he recognized them as the couple who had been there the night before.
Appellant was arrested in Modesto on September 10th, following a liquor store robbery. The lower left leg of his pants and his left shoe had small holes in them. There were several small circular injuries on his left foot. X-rays revealed five foreign objects the size of No. 6 shotgun pellets in the foot. 3 Appellant also had a laceration on the skin between his right thumb and forefinger, a type of injury frequently caused by the recoil of a sawed-off shotgun. The laceration was several days old.
A booking search, following appellant's arrest and transportation to Fresno, produced a piece of paper containing a list of names. Two of the names on the list were Kenneth and Kathy Allen, the son and daughter-in-law of one Clarence Allen. The other names on the list included Bryon Schletewitz and his father, Ray Schletewitz. 4 The name and address of Fran's Market was also written on the list. A documents examiner testified that the handwriting on the list was appellant's.
All the names except Kenneth and Kathy Allen were of people who had testified against Clarence Allen in his 1977 trial for a 1974 burglary of Fran's Market. Allen had been convicted of burglary, murder, and conspiracy in that trial. Fran Schletewitz had testified that a safe was taken from the market during the burglary, but a second safe had not been found.
Appellant had met Clarence Allen in Folsom. 5 Appellant was released from prison on August 29, 1980. On September 2, Kenneth Allen wired him $100, to be picked up at the Western Union office in San Jose.
A friend of the Allens', William Rakis, testified that appellant and Connie Barbo had been at the Allen home several times during the week preceding September 5th. He had the impression from their behavior that they were boyfriend and girlfriend. 6 A search of the Allen home, following the September 5th offenses, produced a photograph of appellant. The prosecution theorized that the photograph had been sent to Kenneth by Clarence Allen, who had access to Folsom prison records, including photographs of inmates.
Around 10 p.m. on September 5th, two hours after the shootings at Fran's Market, Kenneth Allen sold Connie Barbo's car, a Comet Mercury, to a friend. The car was later found to have bloodstains of appellant's type in it. (Allen's blood is of a different type.) Another car, a Cadillac registered to Allen, was found parked near the liquor store in Modesto at the time of appellant's arrest on September 10th. It, too, contained bloodstains of appellant's type. 7 Fingerprints matching appellant's were found in the Cadillac.
The defense challenged appellant's identity as the perpetrator. The deputy sheriff who took Jack Abbott's initial statement testified that Abbott had been unable to identify or describe the man who shot at him except as a "dark-haired male." Abbott said he had seen only a silhouette in the doorway when he looked to see where the shots were coming from.
Kathy Allen's brother, William Proctor, testified that he had seen a third man, other than Kenneth and appellant, at the Allen house on September 5th. Like appellant, this third man was tall and muscular. Proctor also testified that appellant was walking with a slight limp that day, as though he had a twisted ankle. Proctor said that Connie Barbo had not been present at the Allens' that evening.
Shane Callaway testified that he had accidentally shot appellant in the foot on September 4th. Appellant and Kenneth Allen had come to Callaway's house to collect a debt which Callaway owed Allen. Callaway paid, under duress, but said he would get even. When appellant laughed, Callaway angrily pulled out a shotgun. The gun went off accidentally and hit appellant in the foot.
Callaway admitted that he had been at the Allen house several times since September 5th. He had talked with Kathy Allen and was aware that Kenneth had been charged in connection with the Fran's Market incident. However, he denied knowing that the perpetrator had been shot in the foot. He denied discussing any of the events at Fran's Market with Kathy. He said Kathy had asked him to testify about two months before the trial.
Following Callaway's testimony, the defense rested. During the ensuing lunch break, Callaway was arrested on several outstanding misdemeanor warrants. He was released on his own recognizance and sent to the public defender's office to confer with an...
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