People v. Hammond
| Decision Date | 23 May 1986 |
| Citation | 181 Cal.App.3d 463,226 Cal.Rptr. 475 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Keith Lonnie HAMMOND, Defendant and Appellant. AO 27895. |
Frank O. Bell, Jr., State Public Defender, Melissa K. Nappan, Deputy State Public Defender, San Francisco, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Defendant was convicted of the crimes of murder, attempted murder and robbery on a theory of aiding and abetting as the driver of the getaway car. 1 (Two unrelated robbery charges were ordered severed to be tried separately.) Defendant was sentenced to a term of 32 years to life. On appeal defendant raises several claims of error discussed hereafter.
The record discloses the following salient facts:
About 1:00 in the afternoon on April 5, 1983, Stephan Mitcham entered Ormond's Jewelry Store on Lakeshore Avenue in Oakland. He wore a hooded burgundy-colored ski parka and sunglasses and carried a brown paper grocery sack containing a pillow. In response to Mitcham's request to see a better selection of wedding sets, James Ormond, the 79-year-old store owner, walked to the rear of the shop near the safe where more rings were kept. Mitcham followed.
Yvette Williams, a store employee, became fearful of an impending robbery by reason of Mitcham's dress and his approach to the safe. As she started to leave, Mitcham walked over to her desk and asked: "How are you doing today, Miss?" Then, without any warning, he produced a gun and shot her in the face.
Williams fell, bleeding, and pretended to be dead. After hearing her employer's voiced incredulity as to the assailant's purpose in shooting her, she then heard some scuffling noises followed by two shots. She next heard sounds of someone rummaging through the drawers of the safe. Finally, she saw her assailant's feet as he walked past toward the door of the jewelry store.
As Mitcham exited, a number of pedestrians--alerted by a passerby who had observed the struggle--clustered in front of the store. Mitcham warned them, "If you follow me, I'll shoot you" or "If you touch me, I'll kill you." The witnesses watched as he crossed Lakeshore and headed toward Trestle Glen.
At about the same time as the robbery was in progress, defendant Keith Hammond entered a Baskin-Robbins ice cream shop on Trestle Glen and paced back and forth by the front window from which the jewelry store could be seen. Defendant did not order any service but asked the proprietress for a rubber band. About a minute or so after defendant left the shop, the proprietress heard the screeching of tires in a "fast take off."
At this point a Ford Falcon (later described as a gold Ford Falcon with white stripes on top, wire spoke wheels and front grill emblems) was observed making a wide turn from the Baskin-Robbins store onto Trestle Glen. Three witnesses saw a black man wearing a maroon jacket, carrying a brown paper bag, walk swiftly up Trestle Glen from Lakeshore where he jumped or "dove in" the back seat of the car and ducked down. One witness heard defendant, the driver of the car, say "[g]et down, get down" and the passenger's rejoinder to "[g]et, get." The car then sped away up Trestle Glen.
Defendant's car is a gold and white Ford Falcon (defendant was a member of a car club called the "Falcon Gang") and was identified by several witnesses as the one seen leaving the robbery.
The police arrived within minutes and inspected the ransacked drawers in the safe. Williams was taken to the hospital where bullet fragments were removed from the left side of her cheek. Ormond died of multiple gunshot wounds inflicted at close range. Both Williams and the deceased had been shot with .22 caliber bullets. A criminalist testified he test-fired a .22 caliber gun with a pillow over the gun which muffled the firing sounds of the weapon.
Later that afternoon, Mitcham approached an acquaintance, Richard Leonard, and offered to sell him a wedding ring set from a display of about 20 tagged sets of engagement and wedding rings; Leonard selected a set and paid Mitcham about $250 for a ring bearing a price tag of $950.
Mitcham confided to Leonard that he got the rings from a jewelry store near the lake, and that he shot a man and a woman before ransacking the place. Mitcham told Leonard that defendant waited for him in the car. During this conversation defendant stood several feet away from Mitcham. Defendant Hammond did not participate in the sale of the rings.
In his postarrest statement, defendant admitted driving a 1968 gold and white Ford Futura from Alameda College to the Lakeshore District where he entered Baskin-Robbins and asked for a rubber band to tie back his hair. Defendant admitted possession for a few hours of three sets of tagged rings that might have been taken in the Ormond robbery but added that he ultimately threw them away.
Both defendants rested without presenting any testimony.
DISCUSSION **
A. Death Qualified Jury
Defendant further contends that his conviction for the attempted murder of Yvette Williams must be reversed because of the absence of proof of defendant's intent to kill. Defendant's argument is twofold: First, he contends that the evidence was insufficient to support the conviction; the prosecutor conceded (both in closing argument and in striking the special circumstance) that there was no evidence of defendant's intent to kill. Secondly, he continues, the instructions were erroneous in that they failed to inform the jury of the need to find that he possessed the specific intent to kill.
Defendant relies on settled principles that the issue of attempted murder requires a specific intent to kill (People v. Croy (1985) 41 Cal.3d 1, 20-21, 221 Cal.Rptr. 592, 710 P.2d 392; People v. Ramos (1982) 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908; People v. Santascoy (1984) 153 Cal.App.3d 909, 913, 918, 200 Cal.Rptr. 709 ), and that an aider and abettor must share the perpetrator's intent (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318; People v. Acero (1984) 161 Cal.App.3d 217, 224-226, 208 Cal.Rptr. 565). Beeman teaches, however, that to "share" the perpetrator's intent does not mean the aider and abettor is prepared to commit the offense by his own act. All that is needed is a knowing intent to assist the perpetrator's commission of the crime. Once that intent is formed, the liability of an aider and abettor "extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages." (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)
In People v. Croy, supra, 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392, the court explicated its Beeman discussion of vicarious liability in the following manner:
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People v. Taylor
... ... CALJIC No. 3.00 was revised in 1987 to include such a statement in response to a suggestion made in People v. Hammond (1986) 181 Cal.App.3d 463, 469, 226 Cal.Rptr. 475 ... The People assert that defendant is barred from complaining because he failed to request that the instruction be so clarified. (See People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366.) Defendant ... ...
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... ... We disagree ... In People v. Hammond (1986) 181 Cal.App.3d 463, 469, 226 Cal.Rptr. 475, the Court of Appeal proposed that such a clarifying instruction be given in cases in which "a defendant is charged not only with the perpetrator's planned offense but with another offense ultimately committed as a natural and probable consequence ... ...
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