People v. Hamilton

Decision Date28 July 1988
Docket NumberC,Nos. S004399,s. S004399
Citation756 P.2d 1348,249 Cal.Rptr. 320,46 Cal.3d 123
CourtCalifornia Supreme Court
Parties, 756 P.2d 1348 The PEOPLE, Plaintiff and Respondent, v. Billy Ray HAMILTON, Defendant and Appellant. rim. 22311.

Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Musawwir Spiegel, Deputy Atty. Gen., and Louis N. Hiken, Davis, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Herbert F. Wilkinson, Edmund D. McMurray, Ronald S. Prager and Ward D. Campbell, Deputy Attys. Gen., for plaintiff and respondent.

Kent S. Scheidegger, Sacramento and Lon Hamburger, Jackson, as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment of death imposed under the 1978 death penalty law (id., § 190.1 et seq.).

Defendant was convicted in three counts of the first degree murders of Josephine Rocha, Douglas White, and Bryon Schletewitz (Pen.Code, §§ 187, 189), in one count of the attempted robbery of Schletewitz (id., §§ 211, 664), and in two counts of assault with a deadly weapon against Joe Rios and Jack Abbott (id., § 245, subd. (a)). As to each murder count, three special circumstances were found true: felony murder-robbery (id., § 190.2, subd. (a)(17)(i)), multiple murder predicated on the killing of one of the two other victims (id., § 190.2, subd. (a)(3)), and multiple murder predicated on the killing of the other (ibid.).

In our initial opinion in this matter, we affirmed the judgment as to guilt, concluding that no reversible error had occurred at trial. We also set aside the special circumstance findings and reversed the judgment as to penalty. We reasoned that in violation of 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, 208 Cal.Rptr. 196, 690 P.2d 669, the court failed to instruct the jury that intent to kill was an element of the felony-murder and multiple-murder special circumstances. We further reasoned that the errors fell within the scope of the general rule of automatic reversal declared in People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, and outside of any of its exceptions.

After granting the Attorney General's petition for rehearing, we have reconsidered, and overruled, Carlos and Turner. (People v. Anderson (1987) 43 Cal.3d 1104, 1147, 1149-1150, 240 Cal.Rptr. 585, 742 P.2d 1306.) As we shall explain, now as before we conclude that the judgment must be affirmed as to guilt. We now conclude, however, that the special circumstances must be upheld: on the facts of this case the court was not obligated to instruct on intent to kill, and hence its failure to do so was not error. Finally, we conclude that the judgment must be affirmed as to penalty.

I. FACTS

On August 29, 1980, defendant was released from Folsom Prison. While there he had met Clarence Ray Allen. In 1974 Allen had masterminded the burglary of Fran's Market in Fresno by his crime "family" and had subsequently ordered the execution of a member of the "family" who had "snitched." In 1977 Allen was tried and convicted of burglary and murder, among other offenses, and was sentenced to prison; Ray Schletewitz, one of the owners of Fran's Market, and his son Bryon had testified against Allen. On September 2, 1980, Allen's son Kenneth wired defendant $100. During the week preceding September 5, 1980, defendant and one Connie Barbo had visited the home of Kenneth Allen and his wife Kathy several times. A photograph of defendant was subsequently found there. Clarence Ray Allen had access to Folsom prison records, including photographs of inmates.

On September 4, 1980, just before the 8 p.m. closing time, defendant and Barbo entered Fran's Market and bought several items. Joe Rios handled their purchases. At 7:57 p.m. the next day defendant and Barbo returned; one of the clerks locked the front door after they entered. No other customers were present, and the employees were closing the store. Defendant and Barbo went back to the meat counter where Rios wrapped several items for them. Rios began to sweep the aisles, but kept an eye on the couple because he suspected they might shoplift. After watching them go down several aisles and put items in a shopping cart, however, he 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 stock room, he saw his fellow employees--Douglas White, Bryon Schletewitz, and Josephine Rocha--walking in behind him, followed by Barbo and defendant, who was holding a sawed-off shotgun. Defendant ordered all the employees to lie on the floor. He then directed White into the freezer to open the safe. White protested there was no safe there. Schletewitz then identified himself and offered to open the safe, and led defendant to a room behind the freezer where the safe was located. Barbo held a revolver on the other employees.

From where he lay, Rios could hear some scuffling between Schletewitz and defendant. He heard defendant say "You better not get a gun," and then a loud bang. Defendant emerged from behind the freezer and said to White, "Okay, big boy, where is that safe?" When White said he did not know, defendant shot him in the neck. At that point Rios dashed to the bathroom and tried to lock himself in. Rocha was still sitting on the stockroom floor. From inside the bathroom, Rios heard another shot. The bathroom door then opened and defendant loaded his shotgun, aimed, and fired at Rios. Rios managed to raise his left arm to cover his face, sustaining severe injuries to the arm and elbow.

Defendant said, "Let's go, babe," and Rios then heard defendant and Barbo go to the front of the store. Emerging from the bathroom, Rios saw the three other employees lying on the floor. Defendant and Barbo tried to leave by 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 he kept running.

When Jack Abbott, who lived behind Fran's Market, heard the shots, he got his shotgun, which was loaded with shells containing No. 6 pellets, and ran toward the store as Rios ran out. Abbott went into the store, where he saw White and Rocha. As Abbott was leaving 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 toward his car. The man groaned and stumbled as he got in the car and drove away. The man had the same physique as defendant.

Just before 8:30 p.m. the police arrived and found Barbo hiding in the bathroom and her revolver in the toilet tank. Rocha, White, and Schletewitz died from massive shotgun wounds. The front door of Fran's Market was stained with blood later found to match defendant's type. Around 10 p.m. Kenneth Allen sold Barbo's car, a Mercury Comet, to a friend. Bloodstains matching defendant's blood type but not Allen's were later found inside the Comet. Several days after the event, Rios selected defendant's picture from a photographic lineup. He was confident of his identification because he had seen defendant and Barbo on two successive evenings and had recognized them.

On September 10, 1980, defendant was arrested in Modesto following a robbery at a liquor store. The lower left leg of his pants and his left shoe had small holes in them. His left foot bore several small circular injuries and contained five foreign objects the size of No. 6 shotgun pellets. He also had a several-day-old laceration of the skin between his right thumb and forefinger, a type of injury frequently caused by the recoil of a sawed-off shotgun. A Cadillac registered to Kenneth Allen was parked near the liquor store; it bore defendant's fingerprints and was stained with blood matching defendant's type but not Allen's. Following defendant's arrest the police found in his possession a piece of paper that the parties refer to as the "hit list." This document bore, in defendant's handwriting, the names of Kenneth and Kathy Allen, the names of Bryon Schletewitz and his father Ray, and the name and address of Fran's Market. As stated above, Ray and Bryon Schletewitz had testified against Clarence Ray Allen at his 1977 trial.

Defendant put on a defense of mistaken identity. The deputy sheriff who took 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 he saw a third man with Kenneth and defendant at the Allen house on September 5, 1980. Proctor claimed the third man was tall and muscular like defendant. He also testified defendant was walking with a slight limp that day, as though he had a twisted ankle. Proctor asserted that Barbo was not present at the Allen home that evening.

Also testifying for the defense, Shane Callaway first claimed he accidentally shot defendant in the foot on September 4, 1980. He stated defendant and Kenneth Allen had come to his house to collect a debt that he owed Allen; he paid under duress, but said he would get even; defendant laughed; he then angrily pulled out a shotgun and accidentally caused it to discharge into defendant's foot. Callaway admitted he had been at the Allen house several times since September 5, 1980, and had talked with Kathy Allen and was aware Kenneth had been charged in connection with the Fran's Market killings. He denied, however, knowing the perpetrator had been shot in the foot. He also denied discussing any of the events at Fran's Market with Kathy. Following Callaway's testimony, the defense rested.

As Callaway left the courtroom, he was arrested on two outstanding...

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