People v. Sedeno

Decision Date04 February 1974
Docket NumberCr. 16344
Citation518 P.2d 913,10 Cal.3d 703,112 Cal.Rptr. 1
CourtCalifornia Supreme Court
Parties, 518 P.2d 913 The PEOPLE, Plaintiff and Respondent, v. Leandro A. SEDENO, Defendant and Appellant.

Opinion 24 Cal.App.3d 760, 101 Cal.Rptr. 305, vacated.

Gary M. Merritt, San Bruno, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Edward P. O'Brien, Eric Collins and Nancy S. Reller, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

A jury found defendant guilty of the first degree murder (Pen.Code, §§ 187, 189) of Officer Richard Klass and the attempted murder (Pen.Code, §§ 664, 187) of Officer James Van Pelt. The court fixed the punishment for the murder at life imprisonment. In this appeal defendant contends that the evidence is insufficient to sustain the verdict of first degree murder and that the trial court gave erroneous and incomplete instructions. For reasons discussed below we conclude that the judgment must be reversed.

On the morning of May 6, 1966, defendant was a prisoner in the Daly City jail, having been held there overnight following his arrest on a misdemeanor charge. Shortly after 6 a.m., Officer Van Pelt, accompanied by another officer of the Daly City Police Department, took the only other prisoner then in the jail from his cell for photographing and fingerprinting. When they returned, and while the second officer was securing that prisoner, Officer Van Pelt removed defendant from his cell in order to take him to the squad room for the same 'processing.' On the way, defendant, who was walking in his stocking feet ahead of Officer Van Pelt, leaned over to pick up a pair of boots. When the officer instructed him to leave the boots, defendant straightened up and hit the officer in the jaw with his elbow, knocking the officer backward into a wall. Defendant then ran out of the building.

Officer Van Pelt called to another officer and pursued defendant, whom he quickly spotted nearby reaching down as if to put on a shoe. When the officer attempted to seize defendant, however, defendant struck him in the face and chest, using his fists with sufficient force to cause bruises and a swollen jaw. The officer thereupon threw defendant against a fence and struck him on top of the head with his baton. He again attempted to seize defendant, but when he turned his head momentarily as two more officers ran out, defendant broke away and ran toward Mission Street, a major thoroughfare linking Daly City and San Francisco.

Officer Van Pelt pursued defendant onto Mission Street on foot, stopping to telephone the station from a coffee shop to alert other officers. As he finished the call and returned to Mission Street, Officer Klass drove by in a black and white police car. Officer Van Pelt joined Officer Klass in the car and the pursuit continued. The two officers stopped again to pick up a third officer and then sighted defendant who was still running. They pulled the car across the sidewalk at a service station and all three officers, who were in uniform, emerged. The third officer, Sergeant Thomas Culley, told defendant to give up and he would not be hurt, but defendant, after shaking his finger at Officer Klass and mumbling in a low tone, ran around Officer Klass and continued down Mission Street.

Officer Van Pelt returned to the car. As he was doing so he saw Officer Klass tackle defendant from behind at the shoulders. He saw the two men fall between two parked cars where they were out of his vision, and he ran toward them. When Officer Van Pelt was still about 40 feet away he saw the pair emerge from between the parked cars. Officer Klass lay on his right side on the pavement with defendant lying behind and facing toward Officer Klass. Up to the time Officer Klass and defendant had disappeared from view between the parked cars, none of the officers had drawn his gun. When defendant and Officer Klass reappeared, however, defendant was holding with both hands the Smith & Wesson .357 Magnum revolver belonging to Officer Klass. Officer Van Pelt saw defendant, who was only 12 inches from Officer Klass, point the gun toward Officer Klass' back and fire. Officer Van Pelt then grasped defendant who turned and pointed the gun at Van Pelt's head. As Officer Van Pelt pushed the gun away, a shot was fired which caused powder burns on the officer's hand. Although the officer grabbed defendant's hands and defendant's finger was on the trigger, the officer did not put his hands over defendant's trigger finger and did not cause the gun to fire.

Unable to wrest the gun from defendant, Officer Van Pelt held it down on the ground until Sergeant Culley arrived and pried it from defendant's hand. Defendant continued to resist until several people restrained him.

Immediately after his arrest defendant was treated at the jail for a superficial scalp laceration caused by the blow from Officer Van Pelt's baton. The doctor who treated him found him to be active, alert, and behaving normally. Dr. Walter Rapaport, a psychiatrist, who examined defendant at approximately 10 a.m. on May 6, 1966, at the request of the district attorney or the police, found no evidence of mental illness at that time although he was aware that petitioner had a history of schizophrenia. His examination of defendant disclosed no distorted thinking and no psychiatric delusions or hallucinations. In the opinion of Dr. Rapaport, defendant was capable of premeditation and deliberation and of harboring malice. The doctor found no evidence that defendant had been rendered unconscious as a result of the blow and did not believe that defendant's behavior was the result of the blow on the head.

Officer Klass died on June 9, 1966, from causes directly related to the injuries he suffered in the shooting. Defendant was charged on July 19, 1966, with murder and attempted murder, but on August 19, 1966, after undergoing psychiatric examination pursuant to Penal Code sections 1367--1368, was found to be presently insane. Criminal proceedings were suspended and defendant was committed to the Atascadero State Hospital. He was subsequently returned to court but was again found to be insane and was committed a second time on April 6, 1967. Criminal proceedings were reinstated on October 1, 1969, when the court found defendant to be competent to stand trial.

1. Sufficiency of the Evidence.

Defendant contends that the evidence is insufficient to establish murder of the first degree in that there is no substantial evidence upon which to base a conclusion that the killing was deliberate. 1

Defendant does not dispute that the jury was properly instructed as to the elements of first degree murder. 2

'An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' (People v. Reilly (1970), 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 419, 475 P.2d 649, 651.) The test is not whether a contrary conclusion might have been reached nor whether the reviewing court believes guilt has been established beyond a reasonable doubt, but whether substantial evidence supports the conclusion of the jury that the prosecution had met its burden of establishing guilt beyond a reasonable doubt. (Id.)

Here the evidence and reasonable inferences drawn therefrom would support a conclusion that defendant deliberated his act before shooting Officer Klass. He had been stopped by police officers while fleeing from the jail. He had been advised to surrender and had been assured that he would not be hurt. He nonetheless attempted to continue his flight and when restrained by Officer Klass seized the officer's gun and, while the officer was lying on the ground with his back to defendant, shot the officer in the back. He had then attempted to shoot the second officer who sought to restrain him and had continued violently to resist capture.

As in People v. Robillard (1960), 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295, the circumstances of the killing of Officer Klass afford a sufficient basis upon which the jury could infer that the killing was not a rash, impulsive act, and that defendant had in the course of his flight from jail weighed in his mind the possibility that the pursuing officers would apprehend him, and after having considered the reasons for and against such action, decided to resist capture and to kill if necessary. (Cf. People v. Anderson (1968), 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942.)

The length of time during which an intent to kill is pondered may vary with the individual and the circumstances. The test is the ability of the defendant to maturely and meaningfully contemplate the gravity of his intended act. (People v. Risenhoover (1968), 70 Cal.2d 39, 52, 73 Cal.Rptr. 533, 447 P.2d 925; People v. Wolff (1964), 61 Cal.2d 795, 821, 40 Cal.Rptr. 271, 394 P.2d 959; People v. Thomas (1945), 25 Cal.2d 880, 900, 156 P.2d 7; People v. Sanchez (1864), 24 Cal. 17, 30.) There was substantial evidence here upon which the jury could find that defendant was able to and did kill deliberately.

2. Instructions.

Defendant took the stand in his own defense and testified to a history of mental illness, diagnosed as paranoid schizophrenia, which had resulted in several periods of institutionalization. At the time of the shooting he was on an indefinite leave from a veteran's hospital and had discontinued the use of his prescribed medications for approximately a week.

Dr. Charles Respini, a psychiatrist called as a defense witness, had examined defendant in August 1966 and found him to be acutely psychotic and incompetent to stand trial at that time. In his opinion defendant had been sane at the time of the killing, and had the capacity to intend to kill, but his judgment was diminished in that he was overly suspicious and...

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