People v. Hathcock

• Decision Date: 04 January 1973
• Docket Number: Cr. 13802
• Court: California Supreme Court
• Parties: , 504 P.2d 476 The PEOPLE, Plaintiff and Respondent, v. Weldon Lee HATHCOCK, Defendant and Appellant. In Bank

Page 540

105 Cal.Rptr. 540

8 Cal.3d 599, 504 P.2d 476

The PEOPLE, Plaintiff and Respondent, v. Weldon Lee HATHCOCK, Defendant and Appellant.

Cr. 13802.

Supreme Court of California,

In Bank.

Jan. 4, 1973.

William A. Smith, Fresno, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Charles P. Just, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

After an initial mistrial defendant Weldon Lee Hathcock was convicted upon a jury verdict of two counts of first degree murder (Pen.Code, § 187) and two counts of kidnaping (Pen.Code, § 207). A separate jury thereafter set the penalty for each of the two counts of murder at death. (Pen.Code, § 190.) The case is now before us on an automatic appeal (Pen.Code, § 1239, subd. (b).) For the reasons discussed below, we affirm the judgment as modified to provide for a punishment of life imprisonment rather than death.

This criminal proceeding arises from the deaths of Al Owens and Barbara Simon, which occurred during the late evening of Wednesday, January 31, 1968, and early morning of Thursday, February 1 in Fresno and Madera Counties. Witnesses for both the prosecution and the defense generally concurred in the following description of events preceding the deaths of the two victims.

Early on that Wednesday evening defendant and his wife Kathryn, at home with their three children, received a telephone call from a friend, Bruce Wisner. Wisner told the Hathcocks that he was at the Oasis Bar and was in trouble; he asked defendant to bring him a gun. Wisner had apparently been involved in a fight at the bar earlier in the evening. In response to Wisner's call, defendant's wife Kathryn placed a .45 caliber automatic handgun in her puse, and defendant and Kathryn drove to the Oasis Bar. ¹

Upon their arrival at the bar, Kathryn gave the gun to Wisner. A fight immediately broke out between Wisner and another patron, which defendant broke up by taking the gun away from Wisner. After defendant, Wisner, and Kathryn had had a drink, the Hathcocks persuaded Wisner to leave the bar; they all returned to the bar after a few minutes, however, met Al Owens, and then all four went to the Wisner home on Pine Street in Fresno. Defendant and his wife had apparently not been acquainted with Owens prior to that evening; Wisner had met him on one previous occasion.

Soon after the arrival of the four at the Wisner residence, Joe Hamilton, a friend of defendant and Wisner, arrived; a few minutes later Barbara Simon, an acquaintance of Al Owens, joined the gathering at the Wisners'. All of the company was apparently drinking somewhat, and there was testimony--denied by defendant--that defendant and Wisner were taking pills, 'reds,' throughout the evening. Several minutes thereafter, a fight erupted between Hamilton and Owens, apparently after Owens had called Hamilton an 'S.O.B.' Wisner and defendant broke up the fight.

The essential conflict between the prosecution and defense versions of that evening's events begins at this point in time. Defendant testified that after the fight he first attempted to help Owens to his feet and then decided to go home because he was feeling rather ill and believed he had the flu. Defendant stated that he left the Wisner house by himself--Kathryn remained to help 'clean up'--and he went directly home, arriving at his house between 10:30 and 11 p.m. He declared that he knew nothing about the activities of the other people at the house during the remainder of the evening.

Hamilton, Wisner, and Kathryn Hathcock all testified for the prosecution to a substantially different chain of events. All three recounted that after the fight between Hamilton and Owens had been curtailed, the defendant walked over to where Owens was seated in the living room, remarked to Hamilton, 'That's no way to whip a man,' and then struck Owens on the head with the butt of a handgun. Hamilton testified that after Owens fell to the floor from the blow to his head, defendant stomped on Owens several times. Wisner then dragged Owens into the kitchen and advised Hamilton to leave the house. Hamilton left.

The bulk of the prosecution's case against defendant was based on the testimony of Kathryn Hathcock and Wisner as to the events following Hamilton's departure. The two ² testified that Owens, though seriously injured from the beating, was still alive at this time, and Wisner and defendant walked him out of the house. Kathryn and Barbara Simon were instructed to clean up the blood in the livingroom and kitchen; in addition, Kathryn testified that Wisner left a semi-automatic rifle by the kitchen door and instructed her to use the gun on Barbara if she tried to leave.

Wisner alone testified to the subsequent events leading to the actual killing of Owens. Wisner stated that outside the house defendant had declared, '(h)e didn't want Al to creep on him any more, so we would take him for a ride, take him somewhere.' ³ Both men opened the trunk of Barbara Simon's car, put Owens in, and then, with defendant driving, drove out Palm Street to a location near the intersection of Palm and Hearndon. Wisner testified that at this time 'we were both drinking pretty heavy.' They pulled off the road, opened the trunk and both got Owens out of the car. Wisner stated that the defendant then instructed him to get back into the car and he did so. Wisner testified he thereafter heard a number of shots, and defendant returned to the car alone; Wisner did not see the actual shooting. After entering the car, defendant put another clip of cartridges into the gun.

During the drive back to Wisner's house, as the two continued their drinking, defendant asked Wisner if he knew 'the Simon girl'; when Wisner replied that he did not, defendant allegedly remarked that 'she would have to go too.' Wisner and Kathryn testified that when the defendant and Wisner returned to the Wisner residence, it was decided that the two men and two women--Kathryn and Barbara--would drive up to 'a cabin.' ⁴ The four got into the Hathcock car, defendant and Wisner in the back seat, and, initially, Kathryn and Barbara in the front.

Kathryn drove as Wisner and defendant gave directions. On several occasions Barbara apparently requested that the car be be stopped so that she could leave; both Wisner and defendant told Kathryn to keep driving. At some time during the drive, Wisner instructed Barbara to join the two men in the back seat and, as Kathryn continued to drive, the the three allegedly engaged in some sexual activities. When they reached a ranch fence located at Highway 41 and Road 406 in Madera County, defendant instructed Kathryn to stop stop the car.

Kathryn testified that all four then got out of the car and that Wisner and the defendant walked with Barbara Simon back to the fence; Kathryn stated that she remained with the car. Immediately thereafter Kathryn stated she heard several shots, Wisner and defendant returned to the car without Barbara, and the three drove away from the scene of the shooting.

Wisner's version of the events at the scene of the second shooting varied from Kathryn's in that he testified that only defendant walked with Barbara Simon to the fence; Wisner claimed he followed defendant's instructions to get back into the car prior to any shooting. He stated that he then heard several shots, defendant returned without Barbara and the three drove off.

Both the murder weapon and Barbara Simon's purse were thrown from the car as the three returned to Fresno where Wisner purchased a can of gasoline. The three then took Barbara Simon's car out to the county, and, using the gasoline, ignited the car. They all returned to the Hathcocks's home in Fresno, and defendant allegedly fell asleep immediately. Later that night Wisner and Kathryn burned some bloodstained clothing and other potentially incriminating items, including defendant's shoes. A day or two later, upon Kathryn and defendant's request, Paul Wolfe, Kathryn's brother, burned the tires of the car that the Hathcocks had driven on the night of the killings, and replaced them with newly purchased tires.

Defendant, Wisner, and Kathryn were all arrested on February 4, 1968, only a few days after the killings. At their initial arraignment before the Fresno Municipal Court on February 7, 1968, all three were charged with two counts of murder and two counts of kidnaping. One retained attorney, George Carter, represented all three defendants at the arraignment. The court advised the present defendant of his constitutional right of representation by counsel, but did not give any advice with respect to the availability of separate counsel. At the preliminary hearing in the Fresno Municipal Court on March 5 and 6, 1968, Mr. Carter again appeared for all three defendants. Upon the conclusion of this preliminary hearing, the court found the evidence against Kathryn insufficient to warrant further proceedings and dismissed the charges against her, but ordered that the defendant and Wisner be held to answer before the superior court.

Defendant and Wisner were arraigned in the Fresno County Superior Court on March 29, 1968, upon an information charging each with the same offenses enumerated in the municipal court complaint. Both defendants were still represented by a single attorney, Mr. Carter. One month later, on April 30, 1968, Carter withdrew as defendant's attorney of record and defendant's present counsel, Mr. Smith, was substituted; Carter continued to represent both Wisner and Kathryn.

Within a week of this change of counsel, on May 7, 1968, both Wisner and Kathryn, upon advice of their attorney, gave full inculpatory statements to the prosecution, detailing the defendant's role in the crimes. Wisner's confession was obtained in return for the prosecution's agreement not to seek the death penalty against him. Thereafter Wisner pleaded guilty to one count of first degree murder and, upon...