People v. Baca

• Decision Date: 27 December 1966
• Docket Number: Cr. 11038
• Citation: 55 Cal.Rptr. 681,247 Cal.App.2d 487
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alfego Padillo BACA, Defendant and Appellant.

Page 681

55 Cal.Rptr. 681

247 Cal.App.2d 487

The PEOPLE, Plaintiff and Respondent, v. Alfego Padillo BACA, Defendant and Appellant.

Cr. 11038.

Court of Appeal, Second District, Division 4, California.

Dec. 27, 1966.

Rehearing Denied Jan. 16, 1967.

Donald F. Pitts, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Suzanne I. Eisenberg, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was charged in two counts with an assault with a deadly weapon on the persons of two police officers, in violation of 'section 245(b)' of the Penal Code. Two prior felony convictions were alleged. He admitted the priors, pled not guilty and, after a trial by jury, was found guilty of 'Assault by Means of Force Likely to Produce Great Bodily Injury, in violation of Section 245, Penal Code of California, a felony, a lesser and necessarily included offense.' Probation was denied, ¹ and a state prison sentence was imposed. The judgment of conviction reads (so far as here material) in the same terms as the verdicts, namely:

'* * * defendant having been duly found guilty in this court of the crime of ASSAULT BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY (Sec 245 PC), a felony, a lesser offense than that charged in each of the Counts 1 and 2 of the information but necessarily included therein * * *.'

Appointed counsel raises two issues:

(1) That the evidence does not support the verdict;

(2) That it appears that there was a reasonable doubt in the mind of the jury as to what offense, if any, defendant had committed and that, therefore, he should have been convicted of a lesser offense.

In addition, at the request of defendant, counsel raises a contention of prejudicial misconduct on the part of the prosecuting attorney in his argument to the jury. ²

I

The evidence for the People was to the effect that police officers, on patrol, observed a speeding automobile. They gave chase, using their red spotlight and siren. The automobile proceeded, at a high rate of speed, making several turns, until it collided with a house. Defendant got out of the car and ran away. The officers pursued him, apprehended him but, while a routine weapon search was being made, defendant began to fight, with the result that both officers were seriously injured.

Testifying in his own defense, defendant claimed that a person named 'Bob' was driving the car; that Bob ran away after the collision with the house; that defendant also ran; that one officer made an unprovoked attack on him during the weapon search; that his actions thereafter were solely in self-defense to prevent the further use of unlawful force.

It is obvious that the evidence for the People, if believed by the jury, was amply sufficient to support a conviction of the offense as charged. We are without power to reweigh the evidence.

II

Section 245 of the Penal Code is in two subdivisions, and at the time of the offense herein involved, read (so far as is here material) as follows:

'(a) Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison not exceeding 10 years, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment.

'(b) Every person who commits an assault with a deadly weapon or instrument or by any means likely to produce great bodily injury upon the person of a peace officer, and who knows or reasonably should know that such victim is a peace officer engaged in the performance of his duties, when such peace officer is engaged in the performance of his duties shall be punished by imprisonment in the state prison not exceeding 10 years; provided, that if such person has previously been convicted of a felony under the laws of this state or has previously been convicted of an offense under the laws of any other state or of the United States which, if committed in this state, would have been punishable as a felony he shall be punished by imprisonment in the state prison for lot less than 5 nor more than 15 years.'

The trial court instructed the jury on the elements of simple assault and on the elements of subdivision (b) of section 245; it was not requested to, and did not, instruct on the elements of subdivision (a) of section 245. The instructions also covered the matter of lesser and included offenses and the court specifically instructed the jury that there were two such possible lesser and included offenses, namely (a) 'assault by means likely to produce great bodily injury upon the person of a police officer' ³ and (b) 'simple assault, a misdemeanor.' The possibility of a verdict finding defendant guilty, under subdivision (a) of section 245, of the offense of 'assault by means likely to produce great bodily injury' upon a person other than a police officer was not included in the instructions. The instructions also covered the law of arrest and the law of self-defense, and told the jury that, in determining whether or not the officers were properly engaged in the performance of their duties (an essential element under subdivision (b)) they should consider the manner of arrest and the amount of force used. ⁴

The jury was given three forms of guilty verdict: one dealing with assault with a deadly weapon; one dealing with assault by means likely to produce great bodily injury; and one for simple assault. None of the forms contained any reference to the status of the victim. After deliberation, the jury returned, having executed all three of these verdict forms. The trial court advised them of the impropriety of that procedure and directed them to return for further deliberations so that only one verdict would be returned. ⁵ In this connection, the court withdrew from the jury the issue of assault with a deadly weapon, stating that that form should not have been given to the jury, since the prosecuting attorney had conceded that there was no evidence that defendant had used a deadly weapon. Shortly thereafter the jury returned to the courtroom, expressing some confusion as to the matter of a deadly weapon. The court again, and more fully, instructed them to disregard that matter. The jury again retired, but returned a few minutes later and the following proceedings occurred:

'THE COURT: This is the matter of the People of the State of California versus Alfego Padillo Baca.

'Let the record show the jurors have returned and are in the jury box, the defendant is present with his counsel, Mr. Berg, the People represented by Mr. Fletcher.

'Mr. Foreman, I am not quite sure I understand what is meant by this question. Would you make the statement so it will be in the record, what it is that is troubling the jury, and if I can answer your question I will answer it.

'MR. BUFORD: Your Honor, there seems to be a question of assault on a policeman.

'Is that considered a deadly weapon?

'THE COURT: I thought I had made it quite clear that you should not concern yourselves with the question of whether or not a deadly weapon was involved. The People conceded that they had not introduced sufficient evidence for you to find that any assault with a deadly weapon was committed.

'To answer your question from an academic point of view, which is not really material to this case, the victim of the assault has nothing to do with the character of the weapon that is used. It's just as much an assault with a deadly weapon for me to go after you with a gun as it would be for me to go after a policeman with a gun. The character of the victim really should not concern the jury, except that the jury must be satisfied that the assailant, if there was an assailant, knew that the victim was a police officer and that he was in the performance of his duty; but the assault with a deadly weapon is committed regardless of who the victim is. But to find the defendant guilty of the charge here, as the charge does involve a policeman, you must find that the defendant knew that these men were policemen and that they were in the discharge of their duties, but it would have nothing to do as to your finding of the character of the assault.

'All there is for you to determine is, first, did the defendant know that the alleged victims were policemen, were they acting in the line of their duty; if they were, was an assault committed, and if there was an assault committed was that committed by means likely to produce great bodily injury.

'You should bring in one verdict on each count and you should disregard in your deliberations the question of deadly weapon, because the District Attorney has conceded the evidence was insufficient as to the use of a deadly weapon. If you have decided that an assault was committed then you should make a decision as to whether or not the assault was a simple assault or was an assault by means of force likely to produce great bodily injury, but forget about the matter of deadly weapon. Now, or course, you still must be satisfied that the defendant knew that they were police officers and that they were acting in the line of their duty, and there should be one verdict on each of the two counts. Is that clear now or not?

'Mr. Dariano?

'MR. DARIANO: May I ask a question, your Honor?

'Then there can be an assault against a policeman as well as anybody else?

'THE COURT: Yes, and there can be an assault with a deadly weapon and assault by means of force likely to produce great bodily harm. The character of the victim has nothing to do with the assault. But in this particular charge, because of the nature of the charge involved, you must be satisfied that this defendant knew these men were policemen and were acting in the line of duty.

'Apparently you have reached that conclusion. At least the verdicts submitted here would...