People v. Ceballos

Decision Date16 September 1974
Docket NumberCr. 17136
Citation12 Cal.3d 470,526 P.2d 241,116 Cal.Rptr. 233
Parties, 526 P.2d 241 The PEOPLE, Plaintiff and Respondent, v. Don Louis CEBALLOS, Defendant and Appellant. In Bank
CourtCalifornia Supreme Court

Harold J. Truett, Public Defender, and Buford L. Toney, San Rafael, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Derald E. Granberg and Clifford K. Thompson, Jr., Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Don Ceballos was found guilty by a jury of assault with a deadly weapon (Pen.Code, § 245). Imposition of sentence was suspended and he was placed on probation. He appeals from the judgment, contending primarily that his conduct was not unlawful because the alleged victim was attempting to commit burglary when hit by a trap gun mounted in the garage of defendant's dwelling and that the court erred in instructing the jury. We have concluded that the former argument lacks merit, that the court did not commit prejudicial error in instructing the jury, and that the judgment should be affirmed.

Defendant lived alone in a home in San Anselmo. The regular living quarters were above the garage, but defendant sometimes slept in the garage and had about $2,000 worth of property there.

In March 1970 some tools were stolen from defendant's home. On May 12, 1970, he noticed the lock on his garage doors was bent and pry marks were on one of the doors. The next day he mounted a loaded .22 caliber pistol in the garage. The pistol was aimed at the center of the garage doors and was connected by a wire to one of the doors so that the pistol would discharge if the door was opened several inches.

The damage to defendant's lock had been done by a 16-year-old boy named Stephen and a 15-year-old boy named Robert. On the afternoon of May 15, 1970, the boys returned to defendant's house while he was away. Neither boy was armed with a gun or knife. After looking in the windows and seeing no one, Stephen succeeded in removing the lock on the garage doors with a crowbar, and, as he pulled the door outward, he was hit in the face with a bullet from the pistol.

Stephen testified: He intended to go into the garage '(f)or musical equipment' because he had a debt to pay to a friend. His 'way of paying that debt would be to take (defendant's) property and sell it' and use the proceeds to pay the debt. He 'wasn't going to do it (i.e., steal) for sure, necessarily.' He was there 'to look around,' and 'getting in, I don't know if I would have actually stolen.'

Defendant, testifying in his own behalf, admitted having set up the trap gun. He stated that after noticing the pry marks on his garage door on May 12, he felt he should 'set up some kind of a trap, something to keep the burglar out of my home.' When asked why he was trying to keep the burglar out, he replied, '. . . Because somebody was trying to steal my property . . . and I don't want to come home some night and have the thief in there . . . usually a thief is pretty desperate . . . and . . . they just pick up a weapon . . . if they don't have one . . . and do the best they can.'

When asked by the police shortly after the shooting why he assembled the trap gun, defendant stated that 'he didn't have much and he wanted to protect what he did have.'

As heretofore appears, the jury found defendant guilty of assault with a deadly weapon. (Pen.Code, § 245.) An assault is 'an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.' (Pen.Code, § 240.)

Defendant contends that had he been present he would have been justified in shooting Stephen since Stephen was attempting to commit burglary (Pen.Code, § 459), that under cases such as United States v. Gilliam, 25 Fed.Cas. p. 1319, No. 15, 205a, defendant had a right to do indirectly what he could have done directly, and that therefore any attempt by him to commit a violent injury upon Stephen was not 'unlawful' and hence not an assault. The People argue that the rule in Gilliam is unsound, that as a matter of law a trap gun constitutes excessive force, and that in any event the circumstances were not in fact such as to warrant the use of deadly force.

The issue of criminal liability under statutes such as Penal Code section 245 where the instrument employed is a trap gun or other deadly mechanical device appears to be one of first impression in this state, 1 but in other jurisdictions courts have considered the question of criminal and civil liability for death or injuries inflicted by such a device.

At common law in England it was held that a trespasser, having knowledge that there are spring guns in a wood, cannot maintain an action for an injury received in consequence of his accidentally stepping on the wire of such gun. (Ilott v. Wilkes (1820) 3 B. & Ald. 304.) That case aroused such a protest in England that it was abrogated seven years later by a statute, which made it a misdemeanor to set spring guns with intent to inflict grievous bodily injury but excluded from its operation a spring gun set between sunset and sunrise in a dwelling house for the protection thereof. (7 & 8 Geo. IV, ch. 18; see Bohlen & Burns, The Privilege to Protect Property by Dangerous Barriers and Mechanical Devices, 35 Yale L.J. 525, 538, 539.)

In the United States, courts have concluded that a person may be held criminally liable under statutes proscribing homicides and shooting with intent to injure, or civilly liable, if he sets upon his premises a deadly mechanical device and that device kills or injures another. (Katko v. Briney (Iowa), 183 N.W.2d 657, 660; State v. Plumlee, 177 La. 687, 149 So. 425, 429; State v. Beckham, 306 Mo. 566, 267 S.W. 817, 819 (disapproved on another issue in State v. Tatum, Mo., 414 S.W.2d 566, 568); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767, 769; Marquis v. Benfer (Ct. of Civ.App., Tex.), 298 S.W.2d 601, 603; Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686, 687 et seq.) However, an exception to the rule that there may be criminal and civil liability for death or injuries caused by such a device has been recognized where the intrustion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands. (See United States v. Gilliam, Supra, 25 Fed.Cas. pp. 1319, 1320--1321, No. 15, 205a; Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335; Katko v. Briney, Supra; Gray v. Combs, 30 Ky. 478, 23 Am.Dec. 431; State v. Plumlee, Supra; State v. Beckham, Supra; State v. Childers, Supra, 14 N.E.2d p. 770; Marquis v. Benfer, Supra; see Defense of Property--Spring Guns or Traps, 47 A.L.R.3d 646, 662; 6 Am.Jur.2d, Assault and Battery, § 89, p. 78; 40 C.J.S. Homicide § 111, pp. 978--979; Perkins on Criminal Law (2d ed.) p. 1030; Rest. 2d Torts, § 85; Prosser on Torts (4th ed.) p. 1116; but see Posner, Killing or Wounding to Protect a Property Interest (1971), 14 J. Law & Econ. 201, 214--215.) The phrase 'were he present' does not hypothesize the actual presence of the person (see Rest. 2d Torts, § 85, coms. (a), (c) & (d)), but is used in setting forth in an indirect manner the principle that a person may do indirectly that which he is privileged to do directly.

Allowing persons, at their own risk, to employ deadly mechanical devices imperils the lives of children, firemen and policemen acting within the scope of their employment, and others. Where the actor is present, there is always the possibility he will realize that deadly force is not necessary, but deadly mechanical devices are without mercy or discretion. Such devices 'are silent instrumentalities of death. They deal death and destruction to the innocent as well as the criminal intruder without the slightest warning. The taking of human life (or infliction of great bodily injury) by such means is brutally savage and inhuman.' (See State v. Plumlee, Supra, 149 So. 425, 430.)

It seems clear that the use of such devices should not be encouraged. Moreover, whatever may be thought in torts, the foregoing rule setting forth an exception to liability for death or injuries inflicted by such devices 'is inappropriate in penal law for it is obvious that it does not prescribe a workable standard of conduct; liability depends upon fortuitous results.' (See Model Penal Code (Tent. Draft No. 8), § 3.06, com. 15.) We therefore decline to adopt that rule in criminal cases.

Furthermore, even if that rule were applied here, as we shall see, defendant was not justified in shooting Stephen. Penal Code section 197 provides: 'Homicide is . . . justifiable . . . 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony . . ..' (See also Pen. Code, § 198.) Since a homicide is justifiable under the circumstances specified in section 197, A fortiori an attempt to commit a violent injury upon another under those circumstances is justifiable.

By its terms subdivision 1 of Penal Code section 197 appears to permit killing to prevent any 'felony,' but in view of the large number of felonies today and the inclusion of many that do not involve a danger of serious bodily harm, a literal reading of the section is undesirable. (See 1 Witkin, Cal. Crimes (1963) p. 159; Justification for the Use of Force in Criminal Cases, 13 Stan.L.Rev. 566, 578--579.) People v. Jones, 191 Cal.App.2d 478, 481, 12 Cal.Rptr. 777, in rejecting the defendant's theory that her husband was about to commit the felony of beating her (Pen. Code, § 273d) and that therefore her killing him to prevent him from doing so was justifiable, stated that Penal Code section 197 'does no more than codify the common law and should be read in light of...

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