People v. Brunk

Decision Date31 January 1968
Docket NumberCr. 13792
Citation258 Cal.App.2d 453,65 Cal.Rptr. 727
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. William Wallace BRUNK, Defendant and Appellant.

Donald F. Roeschke, Tarzana, by appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and Frank O. Bell, Jr., Deputy Attys. Gen., for respondent.

LILLIE, Associate Justice.

A jury convicted defendant of second degree murder; he admitted a prior felony conviction. Defendant appeals from the judgment.

Shortly before midnight on August 29, 1966, James Landi, a bartender at the Gay 90's, asked Patrick McCall to watch the bar while he threw out two men (defendant and James Perry) seated at the end of the bar. McCall saw Landi and defendant standing close to each other face to face and some movement which may have indicated some pushing but it happened so fast he could not tell; however, a second later McCall heard a sound like a firecracker. Landi turned around and McCall saw a hole in his abdomen; at the same time he saw defendant and Perry leave the bar. When Officer Holroyd arrived, Landi was lying on the floor; blood was flowing from a gunshot wound in his abdomen. The officer asked Landi who shot him; Landi replied, 'Bill Brock shot me,' but was unable to answer further questions before he died.

For the defense Perry testified that he and defendant had a couple of drinks at a bar on York Boulevard and at a friend's house, visited several more bars and finally arrived at the Gay 90's; one of them ordered beer but Landi came out from behind the bar and hit defendant in the face; then he heard a shot and saw defendant head for the door so he followed. He admitted a prior felony conviction. Miss Cox, one of the persons in the bar, testified that Landi refused to serve defendant and Perry, and struck defendant in the face; shortly thereafter she heard a gunshot.

On rebuttal Officer Aguirre testified that he talked to James Perry at 11:30 a.m. on the day of the shooting and Perry told him:

'We went to the bar, Bill and I, about 11:30 or so. We were going to have a drink and we had just sat down and this bartender came over and told us to get out. Then he came around the outside of the bar and Bill got up. Then I heard a shot and the bartender started to stagger and go to the back of the bar. I don't know what really happened. We just took off running.'

Appellant claims there is a complete lack of evidence that he killed Landi--no one saw him do it, there was no scientific evidence that he killed him, there was no proof he had a gun and Landi told the officer a Mr. 'Brock' not Brunk shot him.

It is undisputed that Landi went over to defendant and Perry and was shot in the process of asking them to leave the bar. Viewed in a light most favorable to the People (People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049), the evidence establishes that defendant was the only one in a position to inflict the fatal wound and that immediately after the shot was fired he fled the premises; it is fair to conclude that it was defendant who shot Landi. The jury, having rejected the defense testimony that Landi struck defendant in the face, was justified in any inference that the motive for the shooting, unwarranted as it might be, was Landi's attempt to eject defendant from the bar. Also for the jury's consideration was defendant's immediate departure after the shot was fired which constitutes flight, affords a basis for an inference of consciousness of guilt and constitutes an implied admission. (People v. Jack, 233 Cal.App.2d 446, 458, 43 Cal.Rptr. 566; People v. Brooks, 64 Cal.2d 130, 138, 48 Cal.Rptr. 879, 410 P.2d 383; People v. Davis, 48 Cal.2d 241, 251, 309 P.2d 1; People v. Santo, 43 Cal.2d 319, 327, 273 P.2d 249.) The evidence supports the jury's verdict of second degree murder. (People v. Jones, 225 Cal.App.2d 598, 606, 37 Cal.Rptr. 454.)

Appellant requests that we modify the judgment to reduce the offense from second degree murder to voluntary manslaughter because of 'an argument' between him and Landi, the latter's weight and Landi's approach to force him to leave the bar, clearly presenting 'a case of extreme provocation, fear, and sudden passion.'

'When the killing is proved to have been committed by appellant and nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such a case the verdict should be murder of the second degree. (People v. Wells, 10 Cal.2d 610, 617, 76 P.2d 493.) The burden of proving circumstances and mitigation is on the appellant. (People v. Wells, supra, (at p. 617), 76 P.2d 493; People v. Hall, 212 Cal.App.2d 480, 482, 28 Cal.Rptr. 164.) In addition, an assault with a dangerous weapon made in a manner to endanger life and resulting in death is sufficient to sustain a verdict of second degree murder. Malice is implied from the assault. (People v. Watkins, 178 Cal.App.2d 41, 44, 2 Cal.Rptr. 707; People v. Torres, 94 Cal.App.2d 146, 149--150, 210 P.2d 324.)' (People v. Jones, 225 Cal.App.2d 598, 606, 37 Cal.Rptr. 454, 458.)

The defense attempted to establish the mitigation necessary to reduce the killing to voluntary manslaughter. The issue was submitted to the jury on full instructions defining voluntary manslaughter (208--A Revised, CALJIC) and heat of passion and provocation (311, 311--A, CALJIC), and directing a finding of manslaughter if the jury found that defendant committed the homicide but a reasonable doubt existed between murder and manslaughter (305--AA, CALJIC). Having found defendant guilty of second degree murder, it is obvious that the jury disbelieved the testimony of Perry and Cox that defendant was struck in the face by Landi, and wholly rejected defendant's claim that he was provoked and killed in the heat of passion. The fact that Landi weighed 280 pounds and went over to defendant and Perry to throw them out of the bar does not in itself establish as a matter of law...

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10 cases
  • People v. Pacheco
    • United States
    • California Court of Appeals Court of Appeals
    • 9 Marzo 1981
    ...13 Cal.3d 500, 505-507, 119 Cal.Rptr. 225, 531 P.2d 793; People v. Lewis, 1 Cal.App.3d 698, 701, 81 Cal.Rptr. 900; People v. Brunk, 258 Cal.App.2d 453, 457, 65 Cal.Rptr. 727). Defendant, however, urges that here, the evidence suggests that the crime occurred under circumstances of substanti......
  • People v. Javier
    • United States
    • California Court of Appeals Court of Appeals
    • 31 Julio 2003
    ...(People v. Valentine , 28 Cal.2d 121, 169 P.2d 1; People v. Danielly, 33 Cal.2d 362, 202 P.2d 18.)'" (People v. Brunk (1968) 258 Cal. App. 2d 453, 456-457, 65 Cal. Rptr. 727.) In Brunk, a bartender was shot by a patron when the bartender tried to force the patron to leave the bar. (Id. at p......
  • State v. Hilliker
    • United States
    • Maine Supreme Court
    • 8 Noviembre 1974
    ...man." State v. Park, 159 Me. 328, 332-333, 193 A.2d 1, 3 (1963); see State v Rollins, 295 A.2d at 921; see also People v. Brunk, 285 Cal.App.2d 453, 65 Cal.Rptr. 727 (1968); People v. Brunbaker, 53 Cal.2d 37, 346 P.2d 8 However, there are definite limitations on the type of conduct deemed l......
  • People v. Roy
    • United States
    • California Court of Appeals Court of Appeals
    • 28 Junio 1971
    ...to have been committed by the accused, and nothing further is shown, the presumption is that it was malicious. (People v. Brunk, 258 Cal.App.2d 453, 456, 65 Cal.Rptr. 727.) Defendant contends the trial court erred in failing to give the flight instruction contained in Penal Code, section 11......
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