Filed 12/4/24 P. v. Hampton CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083234
v. (Super.Ct.No. BAF2001115)
RICHARD SHANE HAMPTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge.
Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Shane Hampton was being housed at the Larry
D. Smith Correctional Facility awaiting trial; he and two other inmates targeted the
1 victim after discovering he was awaiting trial on child molestation charges. All three
inmates waited for a security check to be completed and then Hampton’s cohort put
blankets up to obscure a set of bunk beds. The three then assaulted the victim and left
him dead on his bunk covered in a sheet. Surveillance video showed the assault. The
victim died as a result of strangulation. Defendant was convicted of one count of first
degree murder.
Defendant, relying on the recent California Supreme Court decision in People v.
Brown (2023) 14 Cal.5th 453 (Brown), claims that the jury was erroneously instructed on
the theory of lying in wait first degree murder requiring reversal of his conviction.
PROCEDURAL HISTORY
Defendant was convicted of first degree murder within the meaning of Penal Code
section 189, subdivision (a).1 In a bifurcated proceeding, the trial court found true that
defendant had suffered one prior serious felony conviction, and one prior serious and/or
violent felony conviction (§§ 667, subd. (a), (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)).2
Defendant was sentenced to 50 years to life, plus a determinate sentence of five years, to
be served in state prison.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant was additionally charged with the special allegation of intentionally killing the victim while lying in wait (§ 190.2, subd. (a)(15)) but the jury found the allegation not true.
2 FACTUAL HISTORY
A. PROSECUTION CASE-IN-CHIEF
Riverside County Sheriff’s Deputy Zackary Carter was assigned to the Larry D.
Smith Correctional Facility (jail) in September 2020 and knew defendant, who was an
inmate. Deputy Carter explained that when inmates wanted to make phone calls from the
jail, they had to use a specific number to identify who was making the call. All calls
were monitored and recorded.
Deputy Carter reviewed defendant’s phone calls on September 5, 2020.
Defendant made a phone call to his mother at 8:16 p.m. Defendant told his mother he
needed her to look somebody up and it was “really, really important.” He spelled out the
name “Roseno [sic] Echevarria.” The time for the call was almost up (inmates were
only allowed to make 15-minute calls) and defendant’s mother was still looking up the
name. She told defendant to call her the next day but he told her “I need to know this real
soon.” They agreed that defendant would call her back in five minutes. Another call was
made by defendant to his mother at 8:42 p.m.3
On September 8, 2020, defendant was housed in Housing Unit 14. Jason Barton
and Aaron Aubrey were also inmates in the same housing unit. Rosendo Echevarria was
also an inmate in the same housing unit.
Deputy Adrienne Morrow was working at the jail on September 8, 2020. He
indicated that inmates at the jail were housed in different dayrooms. The dayrooms had
3 The transcript for this call has not been made a part of the record on appeal.
3 several bunk beds where the inmates slept. They did not stay in separate cells. Deputies
did not stay in the dayrooms all the time; they did security checks every hour. Security
cameras recorded all the time in the dayrooms.
On September 8, 2020, at 8:00 p.m., Deputy Morrow was working at the
switchboard in charge of opening and closing security doors. He was in a separate room
that had windows looking out into the different dayrooms. He was doing several things
at this time and was not looking into the dayrooms at all times. At 8:33 p.m., an inmate
in the dayroom where defendant, Aubrey, the victim, and Barton were housed attempted
to get Morrow’s attention. Morrow told the inmate to give him a minute. The inmate got
his attention again, making a motion with his eyes and surreptitiously pointed to another
part of the dayroom. He looked to the area and saw that a blanket was draped over a
bunk bed, obscuring the lower bunk. There was a rule that blankets were not to be
draped over bunks.
Deputy Morrow enlisted Deputy Zachary Johnson to go into the dayroom to
check. Deputy Johnson entered the dayroom and went to the bunk bed that had a blanket
draped over it. He moved the blanket and found the victim face down on the bunk
covered with a sheet. The victim was not breathing and had a “blueish-purplish” color to
him. He had blood on his clothes and had no pulse. CPR was performed on the victim
but it was not successful and he was pronounced dead.
Video surveillance from the dayroom starting at 7:40 p.m. was shown to the jury.
Defendant was with Barton. Barton was then seen sitting on a bunk bed talking with
Aubrey. At 7:46 p.m., defendant, Barton, and Aubrey were all together in the dayroom.
4 A security check was conducted by one of the correctional deputies at 7:55 p.m. At 8:09
p.m., Aubrey hung a blanket over one of the bunk beds. He then hung a blanket on
another bunk bed. At 8:12 p.m., the victim could be seen sitting at a table in the
dayroom. He was seen near the covered bunk beds at 8:15 p.m. Defendant could be seen
heading between the covered bunk beds at 8:17 p.m. Defendant and the victim appeared
to be having a conversation. Barton moved to the area near defendant and the victim at
8:18 p.m. Movement could be seen between the two bunk beds.
The victim escaped out from between the two bunk beds and Aubry chased him to
a wall in the back of the dayroom. Aubrey assaulted the victim in the back of the room.
Defendant and Barton emerged from the covered bunk beds. At 8:20 p.m., the victim
was on the ground in the back corner of the dayroom. Barton was standing nearby but
defendant and Aubrey could not be seen. Barton went to wash his hands. At 8:22 p.m.,
defendant washed his hands. Defendant went back by the bunk beds. Barton could be
seen cleaning the back of the room with a towel. Aubrey emerged from the area of the
bunk beds at 8:28 p.m. and had removed his orange jumpsuit. At 8:34 p.m., defendant
again washed his hands. Deputy Johnson entered the dayroom at 8:37 p.m. Defendant
was on another bunk bed. He took off his socks and threw them aside.
Deputy Johnson immediately asked for medical help for the victim. Several other
deputies came to assist and paramedics arrived. All the other inmates were removed
from the dayroom.
Deputy Alvin Calhoun was working in the intake area of the jail at 3:48 a.m. on
September 9, 2020. Defendant came into the area waiting to be seen by medical staff.
5 Deputy Calhoun was aware of the incident in the dayroom. Defendant asked Deputy
Calhoun “How you doing?” Deputy Calhoun responded, “Alright, better than you.”
Defendant responded “I’m perfect,” and “I’m doing fine.” Deputy Calhoun asked for
defendant’s identification number. He then asked defendant, “You good?” Defendant
responded, “I made the world a safer place.” Deputy Calhoun said, “Yeah.” Defendant
continued, “for the children anyway.”
Justin Rinkert was a fraud investigator for San Bernardino County but previously
was employed as a Riverside County deputy sheriff. He was assigned to the jail as an
investigator in September 2020 and investigated the victim’s death. He obtained the
surveillance video for the dayroom and also for a nearby exercise room where the
inmates were moved after the victim’s death.
In the video surveillance, he observed defendant, Barton, and Aubrey put the
victim on the bunk bed and cover him. The footage also showed defendant standing
between the two covered bunk beds keeping the victim from leaving the area. Defendant
and Barton both appeared to be assaulting defendant on the bunk beds. The victim
momentarily escaped but was chased by Aubrey. The victim then fell to the ground.
Defendant, Barton, and Aubrey were all in the area by him.
The video surveillance from the exercise room showed defendant and Aubrey
hugging other inmates after the victim was found dead. It appeared they were being
congratulated. Aubrey and defendant could be seen hugging and shaking hands. At 8:41
p.m. defendant could be seen taking off his pants and dropping them behind a wall.
6 Rinkert noted that the assault occurred shortly after a correctional deputy had
completed the hourly security check. This was significant to Rinkert in that it appeared
the parties preplanned the assault and were waiting for the security check to be completed
to begin their attack. Other evidence that the assault was planned was Aubrey putting up
the blankets. Rinkert indicated there were jail politics among inmates. It was permissible
for an inmate to commit violent acts against another inmate who has committed crimes
against children, specifically molestation. The victim was incarcerated on charges of
sexual molestation of a child.
An autopsy was performed on the victim on September 15, 2020. The victim had
bruises, contusions, and scrapes all over his body. He had blunt-force injuries to his
head. He had signs on his neck and in his eyes of strangulation. His windpipe was
fractured and all the muscles in his neck were bruised. He had brain hemorrhaging. The
cause of death was strangulation.
B. DEFENSE
Defendant presented no evidence on his behalf.
DISCUSSION
Defendant contends the standard instruction given on first degree murder,
CALCRIM No. 521, was erroneous because it omitted the mental state element required
to prove lying in wait for first degree murder. Relying on Brown, supra, 14 Cal.5th 463,
he insists that missing from the jury instruction was the requirement that while he was
lying in wait, he harbored a state of mind more culpable than the malice required for a
second degree murder conviction. Defendant further contends the trial court
7 compounded the error when the jury asked a question about first degree lying in wait
murder and they were referred back to CALCRIM No. 521.
A. ADDITIONAL FACTS
The prosecutor argued that the instructions included CALCRIM No. 521, first
degree murder, under the theories of willful, deliberate, and premeditated murder, as well
as lying in wait. The prosecutor noted that the difference between lying in wait under
CALCRIM No. 521, and the special circumstance, was that implied malice murder could
be elevated to first degree even without the intent to kill the victim. Defense counsel
made no objections to the instructions or the theories of murder proposed to be argued by
the prosecutor in closing.
The jury was instructed on express and implied malice theories of murder
(CALCRIM No. 520). Relevant here, they were instructed on implied malice as follows:
“The defendant had implied malice if he . . . intentionally committed the act or failed to
act; [¶] Two, the natural and probable consequence of the act or failure to act or
dangerous to human life; [¶] And, three, at the time he acted or failed to act, he knew his
act or failure to act was dangerous to human life; [¶] And, four, he deliberately acted or
failed to act with conscious disregard for human life.”4 The jury was instructed with
CALCRIM No. 521 as follows: “The defendant has been prosecuted for first-degree
murder under two theories: [¶] One, that he acted willfully and deliberately and with
4 We note that CALCRIM No. 520 was amended effective March 2024 to require that “the natural and probable consequences of that act involved a high degree of probability that it would result in death.” Defendant has made no argument that the change to the instruction impacts this case and we will not make such argument for him.
8 premeditation; [¶] And two, that he acted while lying in wait.” The instruction further
provided the definition of premeditated and deliberate murder, and CALCRIM No. 520
provided the definitions of express and implied malice.
CALCRIM No. 521 also provided the definition of first degree murder while lying
in wait. It provided, “Additionally, the defendant is guilty of first degree murder if the
People have proved that the defendant committed murder while lying in wait or
immediately thereafter. The defendant committed murder by lying in wait if, one, he
conceals his purpose from the person killed; [¶] Two, he waited and watched for an
opportunity to act; [¶] And, three, . . . from a position of advantage, he intended to and
did make a surprise attack on the person killed. The lying in wait does not need to
continue for any particular period of time, but its duration must be substantial enough to
show a state of mind equivalent to deliberation or premeditation. [¶] Deliberation means
carefully weighing the considerations for and against a choice, and knowing the
consequences, deciding to act. . . . [A]n act is done with premeditation if the decision to
commit the acts is made before the act is done. A person can conceal his or her purpose
even if the person killed is aware of the person’s physical presence. The concealment can
be accomplished by ambush or some other secret plan.”
During deliberations, the jury asked, “If a second degree murder charge is believed
to be lying in wait, does this change the charge to one count of first degree murder?” The
trial court and the parties addressed the question off the record. The trial court, though,
noted on the record, “As we all interpret this, the answer would be yes.” The trial court
proposed to refer the jury to CALCRIM No. 521 and all parties agreed. The written
9 response to the jury was “Instruction 521 explains the law that applies to first degree
murder.”
B. ANALYSIS
“A trial court must instruct on each element of a charged offense, even when the
defendant does not propose a complete instruction or object to the court’s failure to
provide one.” (Brown, supra, 14 Cal.5th at p. 461.) “ ‘To prove first degree murder of
any kind, the prosecution must first establish a murder within section 187—that is, an
unlawful killing with malice aforethought.’ ” (People v. Maldonado (2023) 87
Cal.App.5th 1257, 1262.)
Malice is expressed when there is an intent to unlawfully kill. (§ 188, subd.
(a)(1).) “Malice is implied when the killing is proximately caused by ‘ “an act, the
natural consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another and who
acts with conscious disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139,
152.) “ ‘Wanton disregard for human life’ ” and “ ‘ “conscious disregard for human
life” ’ ” articulate the same standard for implied malice. (Id. at p. 152.) “ ‘Ordinarily, . . .
[an implied malice] killing would be murder of the second degree. However, if this
murder is perpetrated by means of lying in wait, it is, by statutory definition, murder of
the first degree.’ ” (People v. Maldonado, supra, 87 Cal.App.5th at pp. 1262-1263; §
189, subd. (a)).)
“All that is required of lying in wait is that the perpetrator exhibit a state of mind
equivalent to, but not identical to, premeditation and deliberation. [Citation.] This state
10 of mind simply is the intent to watch and wait for the purpose of gaining advantage and
taking the victim unawares in order to facilitate the act which constitutes murder.”
(People v. Laws (1993) 12 Cal.App.4th 786, 795 (Laws).) “The act of lying in wait with
secret purpose in order to gain advantage and take a victim unawares is particularly
repugnant and of aggravated character so as to justify harsher punishment when the lying
in wait results in murder, even if the waiting and watching were not done with the intent
to kill or injure.” (Id. at p. 793, italics added; see also People v. Gutierrez (2002) 28
Cal.4th 1083, 1148 [“ ‘[M]urder by means of lying in wait requires only a wanton and
reckless intent to inflict injury likely to cause death . . .” as opposed to the lying in wait
special circumstance which requires an intent to kill].) In Laws, the court rejected a
similar claim as raised by defendant that there was instructional error by not advising the
jury that it had to find a particular mental state while a defendant was lying in wait,
concluding “nothing in section 189 requires the lying in wait to have been done with the
intent to kill. Likewise, nothing in the statute requires the lying in wait to have been done
with the intent to injure.” (Laws, at p. 794.)
Defendant relies on Brown, supra, 14 Cal.5th 453, contending the jury had to be
instructed that first degree lying in wait murder required a state of mind more culpable
than the malice required for a second degree murder conviction. He insists that
CALCRIM No. 521 omitted an element of the offense and requires reversal of his first
degree murder conviction. Although defendant does not clearly state what the jury
instruction should have been, it appears he is arguing that while lying in wait, he had to
possess the mental state of a wanton and reckless intent to inflict injury likely to cause
11 death, rather than just at the time when he committed the murder. Brown does not
support his contention.
In Brown, supra, 14 Cal.5th 453, the defendant was charged with first degree
murder under section 189 by means of poison for breastfeeding her baby while taking
methamphetamine. The baby died with traces of methamphetamine in her system. The
court found, as a matter of first impression, that to elevate murder from second degree to
first degree murder by means of poison, the People must show the defendant deliberately
gave the victim poison with intent to kill or inflict injury likely to cause death. (Brown,
at pp. 456-457)
The Brown court reviewed the history of section 189 and the mental state required
for the other means of first degree murder, lying in wait, and torture. The court stated, in
assessing the language of section 189, “We previously have interpreted this language to
require proof of a mental state more culpable than the malice required for second degree
murder, in keeping with the Legislature’s determination that murders perpetrated by these
means warrant the greater punishment reserved for first degree murder. For torture
murder, the prosecution must show ‘wilful, deliberate and premeditated intent to inflict
extreme and prolonged pain.’ [Citation.] For lying in wait murder, the prosecution must
show the defendant performed the acts of watching, waiting, and concealment with the
intent to take the victim by surprise to facilitate the infliction of injury likely to cause
death. [Citation.] However, since in a typical first degree murder by poison case there is
no question that the defendant acted with willfulness, deliberation, and premeditation, we
have never addressed whether there is a mental state component of first degree poison
12 murder. We now clarify that to prove a murder by poison is in the first degree, the
prosecution must show that the defendant deliberately gave the victim poison with the
intent to kill the victim or inflict injury likely to cause death.” (Brown, supra, 14 Cal.5th
at pp. 456-457.) It further noted that “This case brings to light the need for us to
elaborate on the meaning of the phrase ‘murder . . . perpetrated by means of . . . poison,’
just as prior cases have required us to elaborate on the meanings of ‘torture’ and ‘lying in
wait.’ ” (Brown, supra, 14 Cal.5th at p. 466.) The Brown court concluded that “the trial
court was required to instruct the jury that to find Brown guilty of first degree murder, it
had to find that she deliberately gave her newborn daughter poison with the intent to kill
her or inflict injury likely to cause her death. Its failure to so instruct was error.”
(Brown, supra, 14 Cal.5th at p. 472.)
The Brown court made it clear that it had already resolved the issue of intent for
lying in wait first degree murder, finding, “ ‘[I]t is not sufficient to merely show the
elements of waiting, watching and concealment. It must also be shown that the defendant
did those physical acts with the intent to take [the] victim unawares and for the purpose
of facilitating [the] attack.’ [Citations.] We have also established that the defendant must
act with a ‘ “wanton and reckless intent to inflict injury likely to cause death,” ’[citation]
and the period of lying in wait must be sufficient to show that the defendant had ‘ “ ‘a
state of mind equivalent to premeditation or deliberation’ ” ’ [citation]. Only upon these
specific showings of the defendant’s mental state in lying in wait do we consider the
defendant to have acted with ‘the functional equivalent of’ a premeditated, deliberate
intent to kill [citation], such that ‘no further evidence of premeditation and deliberation is
13 required in order to convict the defendant of first degree murder’ [citation.].” (Brown,
supra, 14 Cal.5th at p. 465.)
Brown never stated there was an additional mental component required while
lying in wait different from what it had found in previous cases. The Brown court cited
to Gutierrez, supra, 28 Cal.4th 1083, which addressed the differences between lying in
wait first degree murder and the special circumstance of lying in wait. The Gutierrez
court specifically noted that the lying in wait first degree murder only required a “wanton
and reckless intent to inflict injury likely to cause death.” (Id. at pp. 1148-1149.) On the
other hand, the special circumstance required an intentional murder. Gutierrez also
noted, “the lying-in-wait special circumstance requires ‘that the killing take place during
the period of concealment and watchful waiting, an aspect of the special circumstance
distinguishable from a murder perpetrated by means of lying in wait, or following
premeditation and deliberation.” (Id. at p. 1149.) The Gutierrez court did not establish
that the defendant must have a specific additional mental state while lying in wait for first
The Brown court also cited to Laws, supra, 12 Cal.App.4th 786. (Brown, supra,
14 Cal.5th at p. 465.) As stated, in Laws, “[a]ll that is required of lying in wait is that the
perpetrator exhibit a state of mind equivalent to, but not identical to, premeditation and
deliberation. [Citation.] This state of mind simply is the intent to watch and wait for the
purpose of gaining advantage and taking the victim unawares in order to facilitate the act
which constitutes murder. [Citation.] It does not include the intent to kill or injure the
victim.” (Laws, supra, 12 Cal.App.4th at p. 795.)
14 There is no additional requirement that, while lying in wait, a defendant had to
have a wanton and reckless intent to inflict injury likely to cause death. He must though
possess such intent while committing the act resulting in the murder of the victim, which
the jury here concluded based on its finding of implied malice second degree murder.5
The additional element of lying in wait that elevates the murder from second degree
murder to first degree murder is the intent to watch and wait for the purpose of gaining
advantage and taking the victim unawares. (Laws, supra, 12 Cal.App.4th at p. 795.)
Nothing in Brown requires that a defendant have the mental state during the period of
watching and waiting. As stated, “[N]othing in section 189 requires the lying in wait to
have been done with the intent to kill . . . [or] the intent to injure.” (Laws, supra, 12
Cal.App.4th at p. 794.) The Brown case referred to both Laws and Gutierrez with
approval. Hence, the reasoning in Laws applies, which does not require the additional
mental state proposed by defendant.
CALCRIM No. 521 properly advised the jury of the elements of first degree
murder on a theory of lying in wait. As such, the trial court properly directed the jury to
the instruction in response to their question. No instructional error occurred in this case.
5 Although the jury could have found defendant guilty on a theory of premeditated and willful first degree murder, based on their question, and it finding the special circumstance not true, it does appear it relied on the first degree lying in wait theory of murder in convicting defendant.
15 DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
RAPHAEL J.