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HAMLIN TORTURE CONVICTION UPHELD BY THIRD DISTRICT COURT OF APPEALS

by Virginia McCullough and Kathryn Joanne Dixon
 

On Monday, February 9, 2009, the Third District Court of Appeal upheld the conviction of Richard Hamlin on all counts brought back by the El Dorado County jury on January 10, 2005 (Click. Richard Hamlin convicted of torture. Verdict carries life sentence.)  The jury found the former prosecutor and private defense attorney guilty of one count of torture, one count of making a criminal threat, three counts of inflicting corporal injury on a spouse and three counts of misdemeanor child abuse. Throughout the Court’s recent decision Richard Hamlin’s ex-wife and mother of their four children was referred to by the initial S.

The torture count which carried a life sentence read:

On or between the 1st day of June, 2003 and the 28th day of February, 2004, in the County of El Dorado, the crime of TORTURE, in violation of PENAL CODE SECTION 206, a Felony, was committed by RICHARD W. HAMLIN, who did unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict great bodily injury, as defined in Penal Code Section 1202.7,upon S.

The appellate court found that there was sufficient evidence introduced at trial that Richard Hamlin had engaged in a course of conduct over the eight month period to support the jury finding of torture. The Court’s affirmation of the torture conviction is paramount.

In his appeal Hamlin contended that the District Attorney’s charge of torture as a course of conduct spanning 2003 and 2004 was unlawful.

The Court disagreed stating,

Where (as here) torture is charged and tried as a course of conduct crime, no single act in the perpetrator’s course of conduct may result in great bodily injury. But where the cumulative result of the course of conduct is great bodily injury and the requisite intent can be found, then the crime of torture has been committed under the course of conduct exception to the election/unanimity requirement.

Hamlin maintained that there was not substantial evidence that when defendant inflicted great bodily injury on S., he did so with the intent to cause her severe pain that would allow the Court to uphold his conviction for torture.

The Court held otherwise, stating:

Here, S’s testimony was sufficient to support the reasonable inference that during his course of physical assaults on her, defendant intentionally targeted areas of her body where he had injured her already and thus acted with the intent to cause her severe pain. This was enough to support a finding that defendant had the intent required for the crime of torture.

Justice Ronald B. Robie, writing for the appellate court wrote “[o]bviously a person can be forced to endure something unpleasant over a period of time.” Robie cited Hamlin’s course of conduct that caused S. great bodily injury and stated that the evidence presented to the jury was sufficient to support a torture conviction. The Court stated that it was the cumulative outcome of the acts committed by Richard Hamlin that resulted in the corporal injury to his ex-wife.

Hamlin contended that the trial court erred in failing to provide jury instructions on three different lesser included offenses to torture – attempted torture, assault by means of force likely to produce great bodily injury, and spousal battery.

It is important to note that at the trial Hamlin did not request jury instructions on these lesser included offenses. Therefore he argued to the court of appeal that trial Judge Eddie Keller should have given these instructions sua sponte, on his own, without a specific request from the defense.

Hamlin argued that facts showed there was reasonable interpretation that defendant was guilty of attempted torture, but not the completed crime, therefore the trial court had a duty to instruct the jury on attempt torture. Defendant contends that “[a]lthough medical evidence showed that [S.] had rib fractures and a fractured nose, the evidence did not clearly establish how these injuries occurred.”

The District Attorney contended and the Attorney general argued:

In response, the People argue that a charge of attempted torture was not supported by substantial evidence because defendant “denied beating [S.], with the exception of slapping her one time and shoving a laundry basket at her in self-defense.” According to the People, defendant “did not present any evidence suggesting that he acted with the requisite intent to commit torture, but simply failed to cause great bodily injury.”

The Court was unpersuaded by Hamlin’s argument, stating,

For a sua sponte instruction on attempt to be required, however, there must be “evidence that a reasonable jury could find persuasive” on the point. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) The evidence on which defendant relies is not such evidence. Essentially, the jury would have had to believe S.’s testimony that defendant hit her to persuade her to go along with his story about the molestation and the satanic cult, but at the same time believed that S’s broken bones and other physical injuries were not caused by defendant’s beatings but had other causes. Most significantly, to accept defendant’s argument, the jury would have had to believe S.’s statement to police that a man she assumed was Rock Clum beat her. But at the same time S. made this statement to police, she told police that defendant never beat her. Thus, the jury would have had to believe the part S.’s statement to police that Rock Clum beat her while at the same time disbelieving her statement to police that defendant never beat her. Because we are not persuaded a reasonable jury would have made these conflicting credibility determinations, we find no substantial evidence to support an instruction on attempted torture in this case.

Addressing a jury instruction for assault by means of force likely to produce great bodily injury, as a lesser included offense of torture, the Court ruled:

Here, defendant argues that assault by means of force likely to produce great bodily injury is a lesser included offense of torture under the elements test because “[a]ny person who inflicts great bodily injury with the intent to torture is necessarily guilty of felony assault for use of force likely to produce great bodily injury.” Not so. Torture requires actual infliction of great bodily injury, but the means of force used to inflict that injury is not an element of the crime. It is possible for a person to commit torture -- i.e., to inflict great bodily injury with the requisite intent and purpose -- by means of force that is not likely to produce great bodily injury, but nonetheless ends up doing so. Thus, torture can be committed without also committing assault by means of force likely to produce great bodily injury, and therefore the latter crime is not a lesser included offense of the former.

Finally Hamlin argued that Judge Keller should have delivered a jury instruction for spousal battery as a lesser included offense of inflicting corporal injury on a spouse. The Court determined:

Defendant was convicted of three counts of inflicting corporal injury on a spouse in violation of section 273.5, subdivision (a). Spousal battery in violation of section 243, subdivision (e) (1) is a lesser included offense of inflicting corporal injury on a spouse. (People v. Jackson (2000) 77 Cal.App.4th 574, 580.)

Defendant contends the lesser offense of spousal battery was supported by substantial evidence -- and therefore the jury should have been instructed on that offense -- based on his own testimony regarding: (1) “the Super Bowl Sunday incident” (which was defendant suggests the jury could have convicted him of only spousal battery based on his testimony that he did not strike S. in the ribs with a knuckle punch but did slap her in anger. With regard to the laundry room incident, he suggests the jury could have convicted him of the misdemeanor based on his testimony that he did not strike S. but did deflect “a laundry basket into her face which aggravated a prior injury, causing her nose to bleed.”

The court rejected Hamlin’s argument, stating:

Despite the People’s failure to address defendant’s actual argument, we conclude defendant has not carried his burden of showing that the trial court erred when it did not instruct the jury on spousal battery. As we have explained, the trial court must instruct sua sponte on “lesser included offenses if the evidence ‘raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’” (People v. Lopez, supra, 19 Cal.4th at pp. 287-288.) Given that it is defendant’s burden, as the appellant, to show that the trial court erred (see, e.g., People v. Alvarez (1996) 49 Cal.App.4th 679, 694), it falls to him to explain -- with respect to both the Super Bowl Sunday incident and the laundry room incident --how the evidence here raised a question as to whether all of the elements of inflicting corporal injury on a spouse were present and that there was evidence that would have justified a conviction of spousal battery instead.

Defendant offers no such explanation. While he quotes the spousal battery statute, he makes no attempt to explain the elements of that crime or to show how those elements were satisfied by his testimony regarding the two incidents. Further, he offers no discussion of the elements of inflicting corporal injury on a spouse and no discussion of how the evidence upon which he relies raised a question as to whether all of the elements of that crime were present. Instead, he summarily recounts, in two sentences, his testimony regarding the two incidents, and then asserts that the “lesser offenses were supported by substantial evidence.” This is not sufficient to demonstrate trial court error; accordingly, we find none.

In upholding the torture conviction of Richard Hamlin the Court sent a clear message to those who engage in a pattern of spousal abuse that the domestic violence laws have now been expanded to include torture which carries a life sentence. This is a unique interpretation of California’s torture law. Prosecutors can now charge torture and seek life sentences for cases involving continuing domestic violence. It should send a message to all involved in violent relationships to simply walk away.

In this appellate decision the Court specifically found that Hamlin’s life sentence for the torture count also did not constitute cruel and unusual punishment.

Finally, the court returned to the paramount issues of the torture conviction. It noted that Hamlin argued that the sentencing for torture was cruel and unusual punishment under the California and the United States constitutions in that the punishment “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”

The Court applied the analysis of the California Supreme Court in In re Lynch, 8 Cal.3d at p. 410.) which utilizes three “techniques” used by courts to determine whether a particular punishment is so disproportionate that it shocks the conscience.

In regard to the first technique, the focus is on the nature of the offense and the offender.

The Court ruled:

On this point, defendant’s argument is relatively brief. He emphasizes that he had no prior criminal record, was 43 years old at the time of his arrest, and -- as the trial court observed -- “brought himself up from nothing and made a success of [his] career as both [a] prosecutor and defense attorney.” As for the crime, he asserts it “represents a minimum violation of the torture statute” and did “not present the same level of brutality normally found in torture cases.”

Like the trial court, we do not dispute defendant’s “good qualities,” as reflected in his lack of a criminal record and success in life prior to the crimes in this case. But we also agree with the trial court that “the facts of this case demonstrate that [defendant is] also capable of gross inhumanity and [he is] neither remorseful nor contrite for what happened.” Under the circumstances of this case, notwithstanding defendant’s lack of a criminal record before these crimes, we cannot conclude a life sentence is so disproportionate to defendant’s crime that it shocks the conscience and offends fundamental notions of human dignity.

In regard to the second technique -- comparing the punishment with the penalty for more serious crimes in the same jurisdiction, the Court applied People v. Barrera (1993) 14 Cal.App.4th 1555 which stated that “[a] review of the statutes of California shows no crimes more serious than torture that are punished less severely.”

The Court ruled:

Defendant contends that “[e]very crime in the Penal Code that is punishable by a determinate term receives lesser punishment than [his] offense,” including “rape, robbery, burglary, arson, carjacking, and child molesting.” What defendant fails to show, however, is that these crimes are “more serious than torture.” It has been said that “‘murder by torture was and is considered among the most reprehensible types of murder because of the calculated nature of the acts causing death.’” (Id. at p. 1569.) The crime of torture shares the same calculated nature, specifically, the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or any sadistic purpose. Given the particularly reprehensible nature of the crime, we cannot conclude that a life sentence for torture violates the proscription against cruel or unusual punishment under the interjurisdictional technique from Lynch.

Finally the Court applied the third technique -- comparing the punishment with the penalty for the same offense in other jurisdictions. The Court ruled:

For the most part, defendant’s argument on this point seeks to compare the life sentence for torture in California with the potential sentence in other states for “[a]n act of violence that causes injury short of death.” This is a flawed comparison because the crime of torture is more than simply a form of aggravated assault, and defendant does not show that the crimes in these other jurisdictions include the particularly reprehensible element of intending to cause cruel or extreme pain for purpose of revenge, extortion, persuasion, or any sadistic purpose. Absent similar elements, the comparison defendant suggests is like comparing apples and oranges. The two sentences defendant does identify for torture in other jurisdictions -- a maximum term of 20 years under federal law and a maximum term of life under Michigan law for torture of a person held in custody -- do not support defendant’s argument that the life term in California is so disproportionate it shocks the conscience and offends fundamental notions of human dignity.

Finally the Court rejected Hamlin’s argument regarding the life sentence for torture pursuant to the 8th Amendment of the US Constitution, stating his argument leads to the same conclusion we reached under California law -- a life term for torture is not cruel or unusual punishment.

Addressing Hamlin’s misdemeanor child abuse convictions the court said, “A person is guilty of misdemeanor child abuse if (among other things), he “willfully causes or permits any child to suffer, or inflicts thereon unjustifiable . . . mental suffering” “under circumstances or conditions other than those likely to produce great bodily harm or death.” (§ 273a, subd. (b). If the abuse occurs “under circumstances or conditions likely to produce great bodily harm or death,” then the crime is a felony. (§ 273a, subd. (a). The court ruled:

Here, defendant contends his misdemeanor child abuse convictions must be reversed because they were barred by the one-year statute of limitations. In the alternative, he contends the convictions must be reversed “[b]ecause the prosecutor’s theory intruded upon the fundamental constitutional rights of parenting and of free expression.” We disagree on both points.

Hamlin had no First Amendment right to willfully inflict unjustifiable mental suffering on his children by falsely telling them that their mother and grandfather were both child molesters, that they themselves had been molested by their mother, and that their grandfather was the leader of a satanic cult that was plotting to kill their father and kidnap or kill the children, Justice Robie added.

Hamlin incurred these convictions in part by telling one or more of his children they were abused by their father-in-law and his wife who he claimed were Satanists.

Hamlin argued:

Defendant contends a conviction for child abuse based on things he told his children impermissibly infringes on his “fundamental constitutional rights of parenting and of free expression.” He asserts that “[w]hether or not the children had any business knowing [what he told them] is a decision to be made by parents, not by the state. The decision as to whether or not to tell children about matters affecting the family and family relationships -- even if they are upsetting or disturbing or false -- belongs to the parent.” He further contends that because his statements to his children “were not indecent, lewd, or obscene,” his speech was constitutionally protected under “his right of free expression in his home.”

The court was unpersuaded and ruled:

We are not persuaded. By his own admission, the evidence showed that defendant told his children that:

(1) their grandfather was a child molester who molested their mother (S.) throughout her childhood;

(2) their grandfather was the leader of a satanic cult that was plotting to kill him (defendant) and either abduct or kill the children; and

(3) their grandfather and their mother had molested them.

Moreover, defendant does not deny that the evidence before the jury would have allowed the jury to reasonably conclude that these things he told the children were false. Thus, given the nature of defendant’s convictions, he is essentially arguing that he had a constitutional right to willfully inflict unjustifiable mental suffering on his children by falsely telling them that their mother and grandfather were both child molesters, that they themselves had been molested by their mother, and that their grandfather was the leader of a satanic cult that was plotting to kill their father and kidnap or kill the children. None of the cases he cites, however, comes close to supporting this proposition.

A child’s right to freedom from injury caused by his or her parent’s willful misconduct extends to freedom from unjustifiable mental suffering, even when that suffering results only from things the parent says to the child. “[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.” (Parham v. J. R. (1979) 442 U.S. 584, 603 [61 L.Ed.2d 101, 119].) Under the circumstances of this case, we conclude defendant’s constitutional rights were not unduly infringed by his child abuse convictions.

The Court is sending a clear message to Hamlin that going over and over his claims about Satanism relative to his wife and father-in-law, constitute a form of child endangerment. Thus, at his parole hearing, if he sticks to his guns, intent on taking down the “demons” he perceives, he will be stating he believes he was right and the court is wrong, and that he may continue his course of conduct upon his release. The court is also sending a message that if he contacts his children, his repetition of his stories about demons will not bode well at any future parole hearing.

Hamlin also alleged several instances of juror misconduct. The Court found that in each instance any allegations of juror misconduct were harmless to the defendant.

Trial judge Eddie Keller imposed upper term sentences on four counts -- the criminal threat conviction and the three convictions for inflicting corporal injury on a spouse. The appeal court reversed and remanded for resentencing. Judge Keller imposed the upper term on these counts because he found “aggravating circumstances”. However the Court found that these sentences violated Hamlin’s rights because “a jury could have found violated his federal constitutional rights under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] because “there was no legally sufficient aggravating circumstance found to exist by the jury, admitted by the defendant, or justified based on defendant’s record of prior convictions.”

Finally the Court found that trial Judge Eddie Keller had no authority to impose a no-contact order between Richard Hamlin and S. or his children beyond the pendency of the criminal proceeding. The People conceded the error and the no-contact order was stricken, and the case is remanded to the trial court for resentencing in accordance with the appellate decision.

Justice Richard Sims and retired Justice Fred K. Morrison, sitting by assignment, joined Robie in his opinion.

The case is People v. Hamlin, 09 S.O.S. 768. (Click to read Third District Court of Appeal Decision)

Virginia McCullough © 3/5/09

Kathryn Joanne Dixon



 

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