People v. Patterson

Decision Date10 April 1989
Docket NumberNo. D006862,D006862
Citation257 Cal.Rptr. 407,209 Cal.App.3d 610
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Troy Anthony PATTERSON, Defendant and Appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and Wanda Hill Rouzan, Deputy Atty. Gen., for plaintiff and respondent.

NARES, Associate Justice.

Troy Anthony Patterson appeals his conviction by jury of attempted murder (PEN.CODE, §§ 664/187)1, robbery ( § 211), attempted robbery ( §§ 664/211), and possession of a sawed-off shotgun ( § 12020, subd (a)) with enhancements for firearm use ( §§ 12022, subd. (a), 12022.5). He contends the court erred in 1) failing to instruct the jury that attempted murder requires proof of express malice and a specific intent to kill; 2) failing to instruct the jury on the definition of aiding and abetting; 3) imposing consecutive sentences for attempted murder and robbery, in violation of section 654; 4) imposing consecutive sentences for two weapons use enhancements; and 5) failing to stay imposition of sentence on one of two counts of possessing a sawed-off shotgun. We conclude the failure to instruct the jury on specific intent as well as on the definition of aiding and abetting requires reversal of Patterson's conviction for attempted murder.

FACTUAL AND PROCEDURAL BACKGROUND

At about 10 p.m. on April 3, 1986, three armed men forced their way into a home where six adults and five children were present. The first man to enter, later identified as Patterson, approached the owner of the home, Gail Hamlin, with a sawed-off shotgun and attempted to handcuff her: Hamlin resisted, fell to the floor and began screaming for her husband, Morris Hall, to help her. Hall came out of the bedroom and saw Patterson struggling with Hamlin. Hall grabbed Patterson, and as he drew back his fist, a shot was fired, hitting Hall in the face. The shot was not fired by Patterson. 2

The intruders demanded cash and Hall complied by throwing money into the room. Hall fell to the floor and the man who shot him put a gun to his head, threatening to blow his brains out if he did not give him the rest of the money. When Hamlin told the men there was no more money, they left.

At about 6 a.m. on April 4, 1986, a police officer saw Patterson standing in the street blocking the forward movement of a car. As the officer approached Patterson, he pulled his coat shut. Believing Patterson was armed, the officer conducted a pat-down search, seized a sawed-off shotgun concealed under Patterson's coat and arrested him. Forensic examination of the shotgun revealed a small quantity of dried blood on the tip of the barrel.

Patterson was charged as follows: count I, attempted murder ( §§ 664/187); count II, robbery ( § 211); counts III, IV and V, attempted robbery ( §§ 664/211); count VI, possession of a concealable firearm by a person previously convicted of a crime ( § 12025, subd. (b)); count VII, possession of a sawed-off shotgun ( § 12020, subd. (a)); and count VIII, unlawful possession of a concealable firearm by an ex-felon ( § 12021, subd. (a)), the felony being for petty theft with a prior theft ( §§ 666/484). As to counts I, II, III, IV and V, it was alleged Patterson personally used a firearm ( § 12022.5). As to counts I, II and III, it was alleged Patterson personally inflicted great bodily injury on a victim ( § 12022.7). 3 The robberies charged in counts II and III were alleged to have been perpetrated in an inhabited dwelling ( § 213.5). An amended information additionally alleged Patterson was armed with ( § 12022, subd. (a)) and personally used ( § 12022.5) a sawed-off shotgun as to counts I through V. Patterson pleaded not guilty and denied the allegations.

Counts IV and V were later dismissed due to the unavailability of witnesses. Before trial, Patterson pleaded guilty to counts VI and VIII.

After trial, the jury convicted Patterson of all remaining counts and enhancements except the enhancements for personal infliction of great bodily injury in counts I and II. The court sentenced Patterson to prison for a total unstayed term of 13 years, 8 months.

DISCUSSION
I CCAnd

Patterson contends the court erred in failing to tell the jury the crime of attempted murder requires proof of express malice and a specific intent to kill. We agree.

The trial court instructed the jury the crime of attempted murder requires proof of a specific intent to commit murder. The court further instructed that murder is a killing that takes place during the commission or attempted commission of an inherently dangerous felony such as robbery. (CALJIC 4 Nos. 8.10 (1983), and 8.21 (1979).) The court did not tell the jury that murder requires a finding of express malice and specific intent to kill, but instead relied on an instruction allowing the jury to apply theories of murder that do not require express malice and specific intent to kill. This was error because "the crime of attempted murder requires a specific intent to kill, a mental state coincident with express malice but not necessarily with implied malice or felony murder." (People v. Ramos (1982) 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908.) Thus, the instruction given here erroneously "implied that the jury should find [Patterson] guilty of attempted murder if it determined that [Patterson] intentionally committed an act which, were the victim to die, would constitute murder on an implied malice or felony-murder theory." (Ibid., citing People v. Murtishaw (1981) 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446; see also People v. Croy (1985) 41 Cal.3d 1, 20-21, 221 Cal.Rptr. 592, 710 P.2d 392.)

The purpose of the felony murder rule is to deter persons from killing negligently or accidentally by holding them strictly responsible for all killings they commit during the perpetration or attempted perpetration of certain felonies. ( § 189; People v. Johnson (1972) 28 Cal.App.3d 653, 658, 104 Cal.Rptr. 807.) For the felony murder rule to apply, section 189 requires a "killing." (People v. Gunnerson (1977) 74 Cal.App.3d 370, 378, 141 Cal.Rptr. 488.) Thus, the felony murder rule is inapplicable to attempted murder as well as aiding and abetting an attempted murder. (People v. Hammond (1986) 181 Cal.App.3d 463, 468-469, fn. 5, 226 Cal.Rptr. 475.) Because there was no killing here, the instruction allowing the jury to convict Patterson of attempted murder on a felony murder theory was error.

B

Contrary to the People's assertion, this result is not changed by the fact Patterson was tried and convicted as an aider and abettor. A defendant's culpability for attempted murder as an aider and abettor necessarily depends on the commission of that crime by the perpetrator. In order to convict the perpetrator of attempted murder, the jury must find he had the requisite express malice and specific intent to kill. If no such finding is made, that person is not guilty of attempted murder. If the perpetrator cannot be convicted of attempted murder without a finding of express malice and specific intent to kill, then no lesser standard should apply to an aider and abettor simply because his liability extends to "the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages." (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

We recognize that as an aider and abettor, a defendant "need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury. [Citation.]" (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.) Nevertheless, the perpetrator must have the requisite specific intent to kill and the jury must be so instructed. The error here was the court's failure to properly instruct the jury on intent as to the perpetrator's crime and its reliance instead on a felony murder or implied malice theory in the context of attempted murder.

C

The appropriate standard of review for this error is the Chapman "harmless beyond a reasonable doubt" test. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, People v. Lee, 17 L.Ed.2d 705; (1987) 43 Cal.3d 666, 676, 238 Cal.Rptr. 406, 738 P.2d 752; People v. Dyer (1988) 45 Cal.3d 26, 64, 246 Cal.Rptr. 209, 753 P.2d 1.) Applying the Chapman test, we cannot say the error here was harmless beyond a reasonable doubt. The evidence showed Patterson participated in the armed robbery of Hamlin and the attempted armed robbery of Hall. The evidence further showed a shot was fired from the kitchen by someone other than Patterson, hitting Hall in the face. Although we can infer from this evidence the perpetrator of the shooting had the intent to shoot Hall, "there was no further evidence of a specific intent to kill necessary to sustain an attempted murder conviction." (People v. Ratliff (1986) 41 Cal.3d 675, 695, 224 Cal.Rptr. 705, 715 P.2d 665; emphasis original.) Moreover, the jury was never instructed the perpetrator of the shooting was required to have express malice and the specific intent to kill. Accordingly, Patterson's conviction for attempted murder must be reversed.

D

We are mindful that a different result was reached in People v. Hammond, supra, 181 Cal.App.3d 463, 226 Cal.Rptr. 475. In that case, defendant Hammond was convicted of murder, attempted murder and robbery on a...

To continue reading

Request your trial
37 cases
  • State v. Kimbrough
    • United States
    • Tennessee Supreme Court
    • June 3, 1996
    ...L.Ed.2d 385 (1991) (quoting 4 Charles E. Torcia, Wharton's Criminal Law § 743 (14th ed. 1981)); see, e.g., People v. Patterson, 209 Cal.App.3d 610, 257 Cal.Rptr. 407, 409 (1989); State v. Gray, 654 So.2d 552, 554 (Fla.1995) overruling Amlotte v. State, 456 So.2d 448 (Fla.1984); People v. Ha......
  • People v. Williams
    • United States
    • California Court of Appeals Court of Appeals
    • January 23, 2009
    ...574.) Defendant relies on People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318] (Beeman) and People v. Patterson (1989) 209 Cal.App.3d 610, 616-617 (Patterson) to support his argument that it was error for the court to fail to instruct the jury on the definition of In Beem......
  • People v. Garcia
    • United States
    • California Court of Appeals Court of Appeals
    • June 5, 2018
    ...592, 710 P.2d 392] ; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107-109 [17 Cal.Rptr.3d 710, 96 P.3d 30] ; People v. Patterson (1989) 209 Cal.App.3d 610, 614 ; People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn. 14 ; In re Michael T. (1978) 84 Cal.App.3d 907, 911 .)"F. WERE ALL RELEVAN......
  • Nguyen v. Knowles
    • United States
    • U.S. District Court — Eastern District of California
    • March 21, 2011
    ...murder as an aider and abettor necessarily depends on the commission of that crime by the perpetrator." (People v. Patterson (1989) 209 Cal.App.3d 610, 614, 257 Cal.Rptr. 407; see People v. Mendoza, supra, 18 Cal.4th at p. 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735.) As noted earlier, they must......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT