People v. Clark

Decision Date31 March 1982
Docket NumberCr. 11049
Citation181 Cal.Rptr. 682,130 Cal.App.3d 371
PartiesThe PEOPLE, Plaintiff and Respondent, v. William James CLARK, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Quin Denvir, State Public Defender, and Stephen Berlin, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally, and Lisa Lewis Dubois, Deputy Attys. Gen., for plaintiff and respondent.

REYNOSO, Associate Justice. *

Defendant William James Clark was granted probation after a jury found him to be guilty of involuntary manslaughter. (Pen.Code, § 192, subd. (2).) He appeals contending: (1) He acted in self-defense as a matter of law. (2) The trial court erred in instructing the jury on involuntary manslaughter. (3) The prosecution introduced improper and prejudicial evidence of the peaceable character of the victim. (4) The trial court erred in requiring, as a condition of probation, that he make monthly payments to the children of the victim.

We hold: In light of the circumstances shown surrounding the homicide the question whether defendant's use of deadly force against the victim was justified was a factual question and not a matter of law. (2) The involuntary manslaughter instructions were proper. (3) In view of the character evidence introduced by defendant the prosecution's character evidence was proper rebuttal evidence. (4) The restitution condition of defendant's probation was proper in that it served the statutory purposes of making amends for the injury caused by defendant's crime and rehabilitating defendant by making him aware of the damage which his actions caused to others. We affirm the judgment.

* * *

Defendant was convicted of the involuntary manslaughter of David Simmons. Defendant had met the victim's wife, Gayle, through his work at Auburn Faith Hospital, and they carried on a two-year sexual affair. Eventually defendant's wife learned of the affair and threatened to expose it to the victim. In the face of such a threat Gayle informed David of the affair and agreed to terminate it. Although David and Gayle agreed to stay together David was unable to let the matter drop. He continually brought it up to Gayle, separated from her for a time, and eventually commenced dissolution of marriage proceedings.

During the months after the affair ended David made a number of verbal threats against defendant. Gayle related these threats to defendant. On several occasions David attempted to confront defendant and Gayle informed defendant of these attempts. On at least two occasions David engaged defendant in a vehicle chase, but defendant was able to elude David. Defendant began to carry a loaded pistol under his vehicle seat.

On the day of the homicide defendant and his wife were driving towards their home towing a trailer. David and Gayle and two of their children were driving in the opposite direction in David's truck. When David saw defendant he turned around and let Gayle and the children out of the truck, and went in pursuit of defendant. David caught up with defendant and motioned for him to stop. He appeared furious. Defendant's wife told him to let her out, and then advised him to drive to their house where she could go inside so defendant could "have it out" with David once and for all. Defendant said that it was bound to happen sooner or later.

David passed defendant's vehicle and drove out of sight. When defendant turned into his driveway he saw that David had angled his truck in the driveway so that defendant could not pass. When defendant stopped his vehicle David got out of his truck and approached defendant's window saying "your time is now." Defendant had taken his pistol out from under the seat and as David reached into the window it discharged into his chest. Defendant attempted to give first aid to David but David died as the result of the gunshot wound.

I

Defendant contends that the evidence establishes as a matter of law that he acted in self-defense and that the killing of David Simmons was justifiable. In order for us to sustain this contention it must appear from the evidence that no reasonable trier of fact could have found otherwise beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

The legal doctrine of self defense is codified in Penal Code sections 197 through 199. 1 Where from the nature of an attack a person, as a reasonable person, is justified in believing that his assailant intends to commit a felony upon him, he has a right in defense of his person to use all force necessary to repel the assault; he is not bound to retreat but may stand his ground; and he has a right in defense of his person to repel the assault upon him even to taking the life of his adversary. (People v. Collins (1961) 189 Cal.App.2d 575, 588, 11 Cal.Rptr. 504.) Justification does not depend upon the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant act out of that fear. (Pen.Code, § 198; People v. Collins, supra.) "He may act upon such appearances with safety; and if without fault or carelessness he is misled concerning them, and defends himself correctly according to what he supposes the facts to be, his act is justifiable, though the facts were in truth otherwise, and though he was mistaken in his judgment as to such actual necessity at such time and really had no occasion for the use of extreme measures." (People v. Collins, supra, at p. 588, 11 Cal.Rptr. 504.) In defending himself, however, a person may use only that force which is necessary in view of the nature of the attack; any use of excessive force is not justified and a homicide which results therefrom is unlawful. (People v. Young (1963) 214 Cal.App.2d 641, 646, 29 Cal.Rptr. 595.)

Issues arising out of self-defense, including whether the circumstances would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of defense of himself, and whether the force used was excessive, are normally questions of fact for the trier of fact to resolve. (See People v. Davis (1965) 63 Cal.2d 648, 655, 47 Cal.Rptr. 801, 408 P.2d 129; People v. Hall (1963) 212 Cal.App.2d 480, 483, 28 Cal.Rptr. 164; People v. Davis (1962) 203 Cal.App.2d 18, 20, 21 Cal.Rptr. 155.) Such is not invariably the case, however. "As an abstract proposition, it is of course conceivable that a case of homicide could be presented to the grand jury in which evidence of adequate provocation or self-defense were both uncontradicted and sufficient as a matter of law; in that event it could reasonably be contended that an indictment for murder would be in excess of the grand jury's power." (Jackson v. Superior Court (1965) 62 Cal.2d 521, 528, 42 Cal.Rptr. 838, 399 P.2d 374.)

In contending that the evidence establishes self-defense as a matter of law, defendant relies upon what he terms the Estrada-Salaz-Toledo principle. In People v. Estrada (1923) 60 Cal.App. 477, 213 P. 67, the Court of Appeal reversed a conviction for murder where the only prosecution evidence which showed that the defendant committed the homicide also showed that he did so in response to a sudden felonious attack by the victim. (60 Cal.App. at pp. 482-483, 213 P. 67.) In People v. Salaz (1924) 66 Cal.App. 173, 225 P. 777, the Court of Appeal reversed a conviction for manslaughter due to a "grievous" error in the reception of evidence. The evidence was extremely close, and the court ruled that if it could not be held as a matter of law that the defendant acted in self defense then the error in the reception of evidence had to be considered prejudicial. (66 Cal.App. at p. 183, 225 P. 777.) The court noted, however, that if there is any well-established circumstance in the case which may reasonably be regarded as incompatible with self-defense then the question is one for the jury. (Id., at p. 181, 225 P. 777.) In People v. Toledo (1948) 85 Cal.App.2d 577, 193 P.2d 953, the Court of Appeal reversed a conviction for manslaughter where the uncontroverted and corroborated evidence showed that the defendant struck the deceased with a pipe only after the deceased had hit the defendant with a bottle and then attacked defendant and others with a knife. The conviction was found not to be supported by the record. (85 Cal.App.2d at p. 582, 193 P.2d 953.)

In People v. Collins, supra, 189 Cal.App.2d 575, 11 Cal.Rptr. 504, the Court of Appeal relied upon the decisions in Estrada, Salaz and Toledo in reversing a conviction for manslaughter. In that case the sole evidence which established that the defendant committed the homicide established that he did so to prevent a homosexual assault upon him. (189 Cal.App.2d at p. 592, 11 Cal.Rptr. 504.) However, in People v. Davis, supra, 203 Cal.App.2d 18, 21 Cal.Rptr. 155, the Court of Appeal distinguished the decisions in Estrada, Salaz, Toledo and Collins, and affirmed a conviction of murder. In that case the deceased bar patron cursed women patrons of the bar, pushed or shoved the defendant perhaps three times, cursed the defendant and threatened to kick him, draped his coat over his arm, and continued to curse other bar patrons. The defendant then fatally stabbed the deceased. The Court of Appeal held that self-defense was not established as a matter of law, noting that in Estrada, Salaz and Toledo the evidence was uncontroverted that the killings occurred in response to attacks with deadly weapons, and that in Collins the uncontroverted evidence showed that the killing occurred in response to a violent sexual attack. (203 Cal.App.2d at p. 20, 21 Cal.Rptr. 155.)

The rule which may be derived from the decisional law is...

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