People v. Hamlin

Full title: THE PEOPLE, Plaintiff and Respondent, RICHARD WILLIAM HAMLIN, Defendant…

Court: California Court of Appeals, Third District, El Dorado

Date published: Mar 9, 2009

No. C053982 (Cal. Ct. App. Mar. 9, 2009)

Opinion

Page 821c

171 Cal.App.4th 821c __ Cal.Rptr.3d__ THE PEOPLE, Plaintiff and Respondent, v. RICHARD WILLIAM HAMLIN, Defendant and Appellant. C053982 California Court of Appeal, Third District, El Dorado March 9, 2009

APPEAL from a judgment of the Superior Court of El Dorado County, Eddie T. Keller, Judge, Super. Ct. No. P05CRF0161

COUNSEL

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Melissa Lipon, Deputy Attorney General, for Plaintiff and Respondent.

MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING (NO CHANGE IN JUDGMENT)

THE COURT:

The opinion of this court filed February 9, 2009 (170 Cal.App.4th 1412; __ Cal.Rptr.3d __), in the above entitled case is modified as follows:

On page 63, in the first full paragraph [170 Cal.App.4th 1456, advance report, 3d par., line 5], delete the remainder of the paragraph following the second sentence (“Not so.”), and insert the following in its place:

Torture requires actual infliction of great bodily injury, but it does not require that the injury be inflicted by any means of force, let alone by means of force likely to produce great bodily injury. For example, a caretaker would be guilty of torturing an immobile person in his care if the caretaker, acting with the intent to cause extreme suffering for a sadistic purpose, deprived that person of food and water for an extended period of time, resulting in great bodily injury to the person. In such a circumstance, the caretaker would have inflicted great bodily injury without using any force and thus would not be guilty of committing assault by means of force likely to produce great bodily injury. Because the use of force is not a necessary element of the crime of torture, assault by means of force likely to produce great bodily injury is not a lesser included offense of torture.

Page 821d

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

SIMS, Acting P.J., ROBIE , J.