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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Wayne HENDERSON et al., Defendants and Appellants.

Cr. 8058.

Decided: June 10, 1976

Fred E. Corbin, Oceanside, under appointment by the Court of Appeal, for defendant and appellant Carl Wayne Henderson. Brainard, Speyer & Weiss by Larrie R. Brainard, San Diego, for defendant and appellant Herbert Jeffrey Hawthorne. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., M. Howard Wayne and Michael E. Lasater, Deputy Attys. Gen., for plaintiff and respondent.

Carl Wayne Henderson and Herbert Jeffrey Hawthorne, codefendants, appeal judgments after jury trial convicting them of second degree murder (Pen.Code § 187–Count I) and false imprisonment (Pen.Code §§ 236 and 237–Count III), and acquitting them of kidnapping (Pen.Code § 207–Count II); Henderson was also convicted of assault with a deadly weapon (Pen.Code § 245(a)-Count IV). The jury further found Henderson used a firearm (Pen.Code § 12022.5) and Hawthorne used a deadly weapon (Pen.Code § 12022) during each of the offenses of which they were convicted.

Henderson was sentenced to prison and Hawthorne was granted probation.

On October 13, 1974 Hawthorne and Henderson entered their home and noticed their television set was missing. Suspecting Jim Reinesto had stolen it, they decided to find him and recover the TV. At Henderson's request, Hawthorne got his shotgun and handed it to Henderson. They left for the house where Henderson had last seen Reinesto. Hawthorne drove because Henderson did not have a driver's license. Upon arriving, they learned Reinesto was not there. Henderson borrowed a pistol from someone at the house, and again set out with Hawthorne to find Reinesto.

They drove to Kansas Street and burst into a home where they found Reinesto sitting in a chair. Hawthorne held a club as he guarded the door. Henderson pointed the pistol at Reinesto's head and demanded the TV. They threatened to take Reinesto to the canyon at the bottom of Texas Street and kill him if he did not produce it. Reinesto denied taking the TV, and in an effort to save himself, suggested they all go to the home of the Gilhooleys, who, Reinesto said, would confirm he was with them and had not taken the TV. Henderson responded, ‘. . . let's go to the canyon.’ Still holding the club, Hawthorne escorted Reinesto to the car, and told him to get in. Hawthorne also said, ‘we are going to the canyon, . . . either the TV or that's it.’ Henderson followed a minute or two later. After they were all seated in the car, Henderson put the shotgun against Reinesto's neck and said, ‘Come on, Jeff, let's go down to the canyon . . .’ They told Reinesto they were not going to Gilhooley's house. Reinesto was terrified. Nevertheless, at one point during the ride, they turned and went to Gilhooley's home.

The three men got out of the car. Hawthorne carried the club and Henderson held the pistol as they followed Reinesto to the door. Hawthorne said to Mr. Gilhooley, ‘we are here to find out if Jim had stole . . . the color TV.’ Henderson was pressing the pistol to the back of Reinesto's neck, and Hawthorne stood nearby holding the club and facing Reinesto. Gilhooley and his wife, Patricia, verified Reinesto's protestations of innocence.

However, Henderson apparently disbelieved the Gilhooleys. He said, ‘come on, let's go.’, and pushed Reinesto with the gun. At that instant, Reinesto ducked to the left and lifted his arm. The gun went off and a bullet struck Patricia Gilhooley in the chest. Henderson fled immediately and Hawthorne administered first aid. Patricia died minutes later. Hawthorne told Reinesto, ‘We were just trying to scare you to get you to give the TV back.’

Henderson and Hawthorne contend the second degree murder conviction cannot stand because false imprisonment is not an inherently dangerous felony.

Second degree felony murder must be supported by a felony, which viewed in the abstract, rather than under the particular facts of the case, is inherently dangerous to human life (People v. Lopez, 6 Cal.3d 45, 51, 98 Cal.Rptr. 44, 489 P.2d 1372; People v. Phillips, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Morales, 49 Cal.App.3d 134, 142, 122 Cal.Rptr. 157).

In light of the allegations in Count III that Hawthorne and Henderson used a firearm and a deadly weapon to restrain Reinesto, it is apparent false imprisonment by menace or violence is involved here. Contrary to Henderson's and Hawthorne's contention, it is not necessary in this case to consider whether other techniques of committing the crime, such as by fraud or deceit, are less inherently dangerous (People v. Nichols, 3 Cal.3d 150, 161–163, 89 Cal.Rptr. 721, 474 P.2d 673).1

Although no asportation is involved in false imprisonment, the imposition of violent or menacing restraints upon a person in itself creates a perilous and volatile situation similar to that caused by kidnapping, a crime which will support the greater offense of first degree felony murder. A captive is apt to take a wide variety of life-endangering steps to overcome or escape his captor. This is particularly true when a person is imprisoned by violence or menace, which by their malevolent nature are likely to engender fear for one's safety. Unlike the crime of escape considered in People v. Lopez, supra, 6 Cal.3d 45, 52, 98 Cal.Rptr. 44, 489 P.2d 1372 to be not inherently dangerous, false imprisonment by violence or menace must by definition involve and antagonistic confrontation between captor and victim.

The felony is inherently dangerous to human life, and a criminal may well be expected to anticipate injury or death might result from committing it (People v. Williams, 63 Cal.2d 452, 457, fn. 4, 47 Cal.Rptr. 7, 406 P.2d 647).

Regardless of whether the killing of Patricia Gilhooley was accidental (a detail Henderson regards as significant), it was committed during the perpetration of the felony of false imprisonment with violence or menace, and was a direct causal result of it (People v. Ford, 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892). Henderson's and Hawthorne's conviction of second degree murder serves the purpose of the felony murder rule—to deter felons from committing crimes in which victims may be negligently or accidently killed (People v. Mattison, 4 Cal.3d 177, 185, 93 Cal.Rptr. 185, 481 P.2d 193; People v. Washington, 62 Cal.2d 777, 781, 44 Cal.Rptr. 442, 402 P.2d 130).

Hawthorne and Henderson argue it is ‘bootstrapping’ in violation of People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 to base felony murder on false imprisonment.

Ireland held felony murder may not be based on a felony which is an integral part of the homicide and is included in fact within the offense charged (People v. Ireland, supra, 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Poddar, 10 Cal.3d 750, 756, 111 Cal.Rptr. 910, 518 P.2d 342).

The intent of false imprisonment by violence or menace is to restrain the victim (People v. Zilbauer, 44 Cal.2d 43, 51, 279 P.2d 534). Thus it has a felonious purpose independent of injuring the victim and unrelated to the act which killed Patricia Gilhooley (People v. Mattison, supra, 4 Cal.3d 177, 185, 93 Cal.Rptr. 185, 481 P.2d 193). False imprisonment of Reinesto was collateral to the killing and properly supported the conviction of murder in the second degree.

Hawthorne and Henderson next contend the evidence is insufficient to support their convictions of false imprisonment. Hawthorne also claims the felony murder may have been based on an imprisonment which was too remote from the killing.

In determining whether substantial evidence supports the judgment we must assume in favor of the judgment the existence of every fact the trier could reasonably deduce from the evidence (People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321).

From Hawthorne's and Henderson's first encounter with Reinesto at the Kansas Street home, to the time of the shooting on Gilhooley's porch; Reinesto was continuously faced with a pistol, shotgun or club, while hearing the oft-repeated ultimatum to deliver the TV or be taken to the canyon to be slain.

These actions provide substantial evidence Hawthorne and Henderson falsely imprisoned Reinesto; they immediately preceded the killing, and the jury could properly conclude they were a direct cause of it.

Hawthorne further claims he withdrew from the false imprisonment by saying, ‘Let's go’ immediately before the killing. Obviously the jury rejected this as meaning a withdrawal.

Henderson next complains the trial court improperly admitted statements he made to a psychotherapist, Dr. Griswold, because they were privileged and were made involuntarily.

Before Griswold began interviewing Henderson in jail, Henderson was again advised of his constitutional rights, including a warning anything he said could be used against him in a court of law. In addition, Dr. Griswold told Henderson he would be making a report to the district attorney, who had requested the interview in order to determine Henderson's mental status as the time of the offense.

Henderson showed no unwillingness to talk. His statements were voluntarily made, and lacked the confidentiality required to invoke the patient-psychotherapist privilege (Evid.Code § 1012). Henderson has not shown the ruling of the trial court was erroneous (People v. Cooper, 10 Cal.App.3d 96, 108, 88 Cal.Rptr. 919).

Last, the Attorney General correctly points out the judgment should be modified to show Henderson was ‘armed with’ rather than ‘used’ a deadly weapon (as the jury found) while committing false imprisonment (People v. Strickland, 11 Cal.3d 946, 961, 114 Cal.Rptr. 632, 523 P.2d 672).

The judgment as to Henderson is modified by replacing reference to Penal Code section 12022.5 in Count III with reference to Penal Code sections 12022 and 3024, and as modified, is affirmed. The judgment as to Hawthorne is affirmed.


1.  In Nichols, the crime of burning a car supported felony murder under Penal Code section 449(a), although the section also applies to burning any personal property of another which is worth $25 or more.

GERALD BROWN, Presiding Justice.

AULT and COLOGNE, JJ., concur.