People v. Hawkins

• Decision Date: 12 December 1968
• Docket Number: Cr. 12750
• Citation: 268 Cal.App.2d 99,73 Cal.Rptr. 748
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James HAWKINS and Ernest James Walters, Defendants and Appellants.

Page 748

73 Cal.Rptr. 748

268 Cal.App.2d 99

The PEOPLE of the State of California, Plaintiff and Respondent, v. James HAWKINS and Ernest James Walters, Defendants and Appellants.

Cr. 12750.

Court of Appeal, Second District, Division 1, California.

Dec. 12, 1968.

Rehearing Denied Jan. 7, 1969.

Hearing Denied Feb. 5, 1969.

Sheldon M. Jaffe and Clifford S. Dicker, Culver City, for appellants by appointment of the Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard H. Cooper, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

On September 20, 1968, this court filed its opinion (People v. Hawkins et al., 265 Cal.App.2d ---, ^a 71 Cal.Rptr. 538) affirming the judgments herein. No petition for rehearing was filed. On November 1, 1968, appellant Hawkins filed a document in the Supreme Court of the State of California which it construed to be a petition for hearing. On November 13, 1968, the Supreme Court made is order ¹ granting the petition, retransferring the cause to this court with directions to make appropriate modification in the text of its opinion and refile the same with a modified dispositive order and affirming the judgments in all other respects.

A jury convicted defendants of first degree robbery of an employee of Seaboard Finance Company (count III) and assault with a deadly weapon upon a customer of Seaboard (count IV). They were acquitted of robbery allegedly committed three days earlier (count I); and count II, alleging an assault with a deadly weapon with intent to commit murder on the same date, was dismissed. The court sentenced both defendants to state prison, the sentences on each count to run consecutively to that imposed in another proceeding; stays of execution were granted as to count IV pending appeal of the judgment on count III, such stay to become permanent when the sentence on count III is completed. (See People v. Niles, 227 Cal.App.2d 749, 755, 39 Cal.Rptr. 11.) Defendants appeal from the judgments.

Appellant Walters challenges the sufficiency of the evidence, particularly certain identification testimony, to sustain the finding of his guilt. While apparently conceding that such point standing alone does not warrant a reversal, he nevertheless contends that when considered in conjunction with a second assignment of error, the two points combined require a remand for a new trial. The second assignment concerns a newspaper article, published during the course of the trial, in which reference was made to the recent sentencing of each appellant in another criminal proceeding; according to Walters, his motion for mistrial should have been granted even though all jurors indicated, after inquiry by the court, that they had not read the article in question.

Appellant Hawkins also complains that the identification testimony was unsatisfactory, more specifically as it related to the assault charged in count IV; he further contends that the striking of the victim was incidental to the robbery, thus it was error to impose a sentence (and double punishment) for both robbery and assault (Pen.Code, § 654). A final point relates to asserted errors in the instructions.

On November 24, 1965, Barbara Hawkins was employed as a bookkeeper at a branch office of Seaboard Finance Company. About 3:45 p.m. she saw defendants on the premises; each was armed--Walters carried a revolver and Hawkins a shotgun. They ordered all the employees, some six in number, to lie down on the floor, after declaring: 'This is a holdup.' Hawkins then told Barbara to get up; he handed her a bag and directed her to get the money out of the cash drawers; unlocking the drawers, she gave Hawkins $167. Defendants then said they wanted the money in the safe; when she told them there was nothing in it, Walters checked on her statement. Hawkins then told everybody to sit down and remain quiet. All complied until a commotion was heard in one of the customer cubicles or booths; it later developed that it was caused by the assault alleged in count IV.

The victim of the assault, Richard Shellmire, testified that he was at the Seaboard office with his wife 'trying to consolidate my bills into one.' While doing so, he heard a voice saying, 'Well, this is a holdup.' When he looked up, he observed Walters, whom he identified as making the statement, with a revolver in his hand. Shellmire told his wife: 'Don't more anything. It's a robbery or something going on. Someone may get hurt.' About three or four minutes later, he was struck over the head from behind; when struck he heard his assailant say: 'I told you this was a holdup.' According to Shellmire, it appeared to be the same voice which he had heard in a similar statement minutes earlier.

Robert Bickford, branch manager of the Seaboard office, stated that he saw two Negroes enter his company's place of business on the date in question and participate in the activities testified to by Miss Hawkins; one of them he identified as defendant Hawkins. Another employee, Sharon Wedlund, noticed two men enter the office. They ordered the bookkeeper (Miss Hawkins) to get all the money from the cash drawers and from the safe; she likewise identified defendant Hawkins who was armed with a shotgun. There was other evidence of an incriminating nature which need not be recounted.

Hawkins' defense was an alibi. His brother testified that Hawkins was with him at another address far removed from the scene of the crimes at the time of their commission. As for Walters, witnesses were called whose testimony challenged the identifications of the prosecution witnesses. Much is made of this in the brief filed by Walters; he was variously identified as to height and weight, and different descriptions were given of the clothing he wore.

We consider first the matter of insufficient identification urged by both appellants--in Hawkins' case, only as to the assault upon the victim Shellmire. Repeatedly it has been held that 'in order to sustain a conviction it is not necessary that the identification of the accused as the perpetrator of the crime be made positively or in a manner free from all inconsistencies. It is the function of the jury to pass upon the strength or weakness of the identification and the uncertainties of the witnesses in giving their testimony.' (People v. Mahoney, 146 Cal.App.2d 485, 498--499, 304 P.2d 73, 82.) The issue being accordingly one of fact, the jury's determination in that regard is binding upon this court. (People v. Johnson, 210 Cal.App.2d 273, 276, 26 Cal.Rptr. 614.) While the above rules are generally concerned with identification resulting from use of the sense of sight, no distinction is made when the identification occurs through the sense of hearing. In People v. Horace, 127 Cal.App.2d 366, 369, 273 P.2d 923, 925, quoting from People v. Lorraine, 28 Cal.App.2d 50, 81 P.2d 1004, it is said: "The identity of the person may be established by proof of recognition of his voice, Or by other circumstances which satisfactorily indicate the identity of the individual." As to appellant Walters, his connection with the assault on Mr. Shellmire was satisfactorily established by the latter's testimony that his assailant, contemporaneously with the striking from behind, uttered a statement previously made by Walters while then under the victim's visual observation. As for appellant Hawkins' complicity in the same offense, while there is no evidence indicating that it was he who struck the victim, it was satisfactorily established that his codefendant did the striking; therefore Hawkins was equally guilty as a principal which includes 'all persons concerned in the commission of a crime' and specifically those who 'aid and abet in its commission.' (Pen.Code, § 31.) Whether one has aided and abetted in the commission of a crime is a factual question for the jury determinable from all the circumstances proved (People v. Silva, 143 Cal.App.2d 162, 169, 300 P.2d 25); and among the factors which may be considered in making such determination is the presence of the accused (other than the actual perpetrator) at...