People v. Birch

• Decision Date: 30 December 1969
• Docket Number: Cr. 15651
• Citation: 83 Cal.Rptr. 98,3 Cal.App.3d 167
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Pearl Choate BIRCH, Defendant and Appellant.

Page 98

83 Cal.Rptr. 98

3 Cal.App.3d 167

PEOPLE of the State of California, Plaintiff and Respondent, v. Pearl Choate BIRCH, Defendant and Appellant.

Cr. 15651.

Court of Appeal, Second District, Division 5, California.

Dec. 30, 1969.

Bernard A. Leckie, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ivan Hoffman, Deputy Atty. Gen., for plaintiff and respondent.

FRAMPTON, ^* Associate Justice Pro Tem.

Statement of the Case

Defendant was charged by amended information with the crime of assault with a deadly weapon with intent to commit murder in two counts. Count 1 charged an assault against the person of Rex Council. Count 2 charged an assault upon the person of Rod(erick) Ferguson. It was further alleged that the defendant had suffered a prior conviction of murder in the State of Texas in 1949. Upon arraignment the defendant entered a plea of not guilty and admitted the truth of the allegation of prior conviction. Upon trial by jury the defendant was found guilty of assault with a deadly weapon upon both counts, a lesser but necessarily included offense within those charged, and not guilty of assault with intent to commit murder. A probation officer's report was ordered. On the day set for hearing the matter of probation, the motion for a new trial was denied and the matter was referred to the Director of Corrections for review regarding placement for diagnosis and treatment pursuant to section 1203.03, Penal Code. Upon return and report from the Director of Corrections, probation was denied and the defendant was sentenced to state prison on both counts, the sentences to run concurrently. The appeal is from the judgment.

On July 13, 1967, Paul R. Herpin, a police officer for the City of Compton, was on patrol duty in a police car when he received a radio message at about 6:42 p.m. to go to 718 East Cypress in the City of Compton. Upon arrival at the location he contacted and spoke with the defendant who then occupied the premises. She advised him that she was the owner of the property, and that she was having trouble with her tenants, Mr. and Mrs. Harris, who did not pay the rent. She had contacted her attorney, and, as a result, she had removed the doors from the unit at 716 East Cypress, the Harris' apartment. Officer Herpin met the defendant's nephew, James Choate. At this time no one else was in the front of 716 East Cypress. The defendant was holding some live ammunition in her hands during this conversation. About 25 minutes later Officer Herpin left.

At about 8 p.m. on July 13, Officer Herpin received a second call by radio to proceed to the same location. Officer Rex Council, who had received a similar radio message arrived at the scene at the same time that Officer Herpin arrived. Both were dressed in police uniforms and were driving conventionally marked black and white police vehicles. Officer Herpin, in the second radio message, was told to contact the person at 716 East Cypress. Upon arrival Mr. Roderick Ferguson spoke with them for about 5 minutes. Mrs. Ferguson and Mrs. Zenobia Huff, Mr. Ferguson's mother-in-law, joined in the conversation. The officers than went to the front door of the back unit, 718 East Cypress. Mr. Ferguson remained outside unit 716, on the driveway and sidewalk which connected with the unit at 718. Mrs. Huff went inside unit 716.

When the officers went to unit 718, they spoke to the defendant, who was standing in her doorway at that address. The front door was partly open.

On this walkway from the sidewalk to the rear unit at 718 there is a tree with low hanging branches under which a person may not walk without stooping.

Mr. Ferguson had never seen the defendant before this date.

When the officers were speaking to the defendant, Mr. and Mrs. Huff were standing on Mrs. Harris' front porch at unit 716, and Mrs. Ferguson was standing on the defendant's front porch with the officers. Mr. Ferguson heard the defendant say to the officers 'to get all the people off of her property' and that 'if he didn't get them off her property, she would kill them all.'

There was further conversation between the officers and the defendant. During this time Officer Herpin was standing nearest the door at 718, while Officer Council Stood on the porch near the house number '718.'

Officer Herpin advised the defendant that the relatives of her tenants, the Harrises, had called the police and had inquired as to why the doors were off of the apartment. He told her that a statement had been made to him questioning whether the defendant was the legal owner of the property. Defendant stated that she was the owner, and that even though she was in arrears in payments, she had four months to make up the past due amounts. Mrs. Ferguson told the defendant that Mrs. Harris, the tenant, had a notarized letter from an attorney telling Mrs. Harris not to pay defendant but to make the payments to the attorney. The defendant again stated that she owned the property, and then told Officer Herpin that an unidentified male adult Negro had threatened her.

The defendant was talking loud and was becoming more excited.' She said, 'They threatened to hurt me' and she wanted the people off of her property. When it was explained by Officer Herpin that Mrs. Huff, who was standing on the porch at 716, was the mother of one of the parties who lived there, and that Mrs. Ferguson, who was standing on the porch of 718 with the officers, was the sister of the woman who lived at 716, the defendant said 'Get them all off my property or I'll kill them.' Mr. Huff then walked from the sidewalk onto the porch at 718, and the defendant said, 'That's him, that's him. That's one of the guys. He's going to kill me. He has a gun in his pocket.'

At this point, Officer Herpin turned to Mr. Huff and noticed an obvious bulge in his right front pocket, a square type of bulge. He asked Mr. Huff if he would empty his right front pocket, which he did. It was disclosed that the pocket contained a wallet and a set of keys. Mr. Huff accused the defendant of having threatened him, and the defendant accused Mr. Huff of having threatened her. Mr. Huff then went and stood on the front porch of 716.

The defendant again yelled that she 'wanted them all off her property or she would kill them.' Mr. Ferguson then walked up and the defendant said, 'There's another one there. That's another one. He wants to kill me.' She also stated that Mr. Ferguson had a gun. Officer Herpin told the defendant that Mr. Ferguson did not have a gun. It was obvious that Mr. Ferguson could not have gun concealed on his person as he was wearing a pair of tight bermuda shorts and skin-tight T-shirt.

The defendant continued to yell quite loudly 'get them all off (my) property or (I) would kill them.'

Officer Herpin told the Fergusons and the Huffs to go inside their apartment and he would try and settle the matter. As he looked in the direction of the latter to see if they were moving away, Officer Herpin heard a report that sounded like a gunshot. His back was to the defendant at this instant. He turned to look in the direction of the defendant, and did not see her standing in the doorway. He took a step forward and looked inside the apartment, and 'observed her with a rifle in her hand with the weapon aimed in my direction, * * * yelling, 'I'll kill them all, I'll kill them all. " At this point the defendant was holding the stock of the rifle in her left hand at about hip level and was moving the bolt action with her right hand. She was standing about three feet away from the window inside the apartment. Also, inside the apartment was a white male juvenile and the defendant's nephew.

Prior to the shot, Mr. Ferguson had turned and was walking down the sidewalk. He heard a shot and felt something brush the top of his head. He described the incident as 'like a firecracker goes off real close to you.' He was not injured. Immediately prior to the shot, he had ducked his head to avoid striking it against the low hanging tree limb. The leaves of the tree just above his head shattered and dropped to the ground. He then turned toward the unit at 718, and saw one of the officers pull out his gun and tell the defendant 'that would be enough of that.'

Officer Herpin told the defendant to put the rifle down, and she kept repeating, in a loud voice, that 'she'd kill them all.' Officer Herpin then drew his weapon and ordered the defendant to put the rifle down, since it was aimed in his direction. He told her three times to put the rifle down, and said that if she did not lower the rifle or quit pointing it in his direction, she could possibly be shot. The defendant then lowered the rifle, and Officer Council grabbed it by the barrel and took it away from her. He then gave the gun to Officer Herpin, who took a spent cartridge from the chamber. The weapon was a single shot .22 calibre rifle. The defendant continued to say, 'Get them off my property. I'll kill them all. I'll kill them all. They want to kill me. Get them off my property. I'll kill them all.'

Officer Herpin arrested the defendant and advised of her constitutional rights. She stated that she understood such rights. She asked for and was granted permission to call her attorney. She placed such a call.

Officer Herpin examined the window in defendant's apartment and found a bullet hole through it. There were drapes on the window, but they were drawn away from the window and held back by a mattress. From the portion of the window so exposed, the sidewalk leading to the apartment may be seen. The bullet hole in the window was about five feet, nine inches off the ground, and a bullet fired through this hole would strike a person in the chest area. A bullet hole was found in a window of an apartment building directly across the street. A bullet was recovered from the wall opposite this window. This hole lined up with the trajectory of a bullet...