People v. Coad

• Decision Date: 21 May 1986
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jon Laurence COAD, Defendant and Appellant. AO24331.

Page 386

226 Cal.Rptr. 386

181 Cal.App.3d 1094

PEOPLE of the State of California, Plaintiff and Respondent, v. Jon Laurence COAD, Defendant and Appellant.

AO24331.

Court of Appeal, First District, Division 2, California.

May 21, 1986.

Certified for Partial Publication.

As Modified June 17, 1986.

David C. Johnson, Santa Clara, for defendant and appellant

John K. Van De Kamp, Atty. Gen., Eugene W. Kaster, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SMITH, Associate Justice.

Jon Laurence Coad appeals from a judgment entered after he was convicted by a jury of possession of a concealable firearm by a felon Pen.Code, § 12021), ¹ assault with a deadly weapon ( § 245, subd. (a)(1)), vandalism resulting in less than $1,000 damage ( § 594, subd. (b)(2)), and misdemeanor battery of a police officer ( §§ 242, 243, subd. (b)). The jury also found that the assault with a deadly weapon was committed while appellant was free on bail pending trial on a felony charge ( § 12022.1) and that appellant had been convicted of a prior serious felony (voluntary manslaughter) within the meaning of section 667. We modify the judgment and, as so modified, affirm. ²

BACKGROUND

The four convictions arose out of three separate incidents which occurred over a period of eight months.

Possession of a concealable firearm

The conviction for violating section 12021 arose out of an incident which occurred on April 3, 1982. ³ At 11 p.m. on that date, Albert Negovan, an employee of the City of San Jose, was performing some job related tasks at a pump station in Alviso during a period of severe flooding in that area. As he was working outside the pump station, Negovan saw appellant drive up in a grader and stop about 20 feet from where Negovan was standing. Negovan then saw appellant step down from the grader and approach a group of five or six "Mexicans" who were standing nearby drinking beer around a pickup truck. Although Negovan could not hear what was said, appellant and the Mexicans began speaking in loud voices and apparently became embroiled in a dispute. A woman who was also riding on the grader then approached Negovan San Jose Police Officer Terrence Simpson was patrolling with his partner in the Alviso area when he received a radio report that a man in a grader was threatening others with a gun in the vicinity of Gold and Moffit Streets in Alviso. As Simpson approached that intersection, he was flagged down by a man who related the incident involving appellant and the Mexicans. Simpson and his partner then proceeded down Gold Street until they encountered and stopped the grader driven by appellant. Simpson ordered appellant to get down from the grader, and then conducted a pat down search for weapons. When the officer told appellant he matched the description of a man who had reportedly used a gun to threaten a group of Mexicans, appellant said he didn't know what the officer was talking about. The officer then climbed into the cab of the grader and found a loaded revolver in a depression next to the driver's seat. The officer also found a .22 caliber AR-7 rifle which was broken down with the barrel disconnected and stored in the stock. Appellant was subsequently placed under arrest and booked.

and told him appellant had a gun. Mr. Negovan walked over to where appellant was talking with the Mexicans; he saw that appellant was holding a revolver in his right hand with the barrel facing down. With the help of another bystander, Negovan managed to break up the dispute and appellant got back on the grader and drove away. In the meantime, however, another bystander had called the police to tell them a man was threatening others with a gun.

Appellant took the stand and testified that on the night of the incident he was using the grader to tow cars trapped in the flooding and to haul sandbags to a site where a levee had broken. One of the people who was working at the levee was Santa Clara Deputy Sheriff Rod Herlitz. Initially, Herlitz was wearing his service revolver while he worked on the levee; eventually, however, the revolver became uncomfortable, so he removed the gun, placed it in the grader next to the driver's seat and covered it with his raincoat. Appellant did not see Herlitz put the gun in the grader, and Herlitz did not tell appellant that he had done so.

After the group had finished sandbagging for the night, appellant drove toward home in the grader with his girlfriend Tina as a passenger. On the way home, they drove by a group of Latinos who had earlier threatened to forcibly take some sandbags appellant was transporting to the levee site. As appellant stopped the grader to change gears, the group began yelling at him, threatened to "do things" to his girlfriend, and said they were going to shoot him. Appellant, who, as will become apparent, is not a man to back away from a confrontation, reached down next to the driver's seat and grabbed what he thought was a pipe or wrench, but was in fact Deputy Herlitz's service revolver. Appellant told Tina to get some help and got down from the grader to confront the group. Appellant claims he did not realize he was holding a gun until he was climbing down from the motor grader. Once on the ground, appellant did not point the gun at anybody, but held it pointing toward the ground. Once the bystanders intervened and the confrontation cooled down, appellant got back into the grader, returned the gun to the cubbyhole next to his seat, and drove toward home until he was stopped by the police. Appellant admitted that he lied to the officers when he denied having a gun; he did so, he said, because he was a felon and knew it was illegal for him to possess a concealable weapon.

The thrust of appellant's defense to this charge was self-defense--he claimed that he had a reasonable belief that the group of Latinos was about to inflict bodily injury upon him and that he had a right to use reasonable force (including exhibiting a weapon) to protect himself and his girlfriend.

Vandalism and misdemeanor battery

The convictions for vandalism and misdemeanor battery arose out of an incident which occurred on September 8, 1982. On Shortly thereafter, two policemen arrived on the scene, and the firemen told them what had happened. As the police officers were questioning Tina, appellant again returned to the fire station, this time astride a very large bulldozer. Tyson heard appellant clanking up the street and alerted the police officers who stepped outside and yelled at appellant to stop. Appellant paid no heed, and the officers trained a shotgun and pistol on appellant and again demanded that he stop; appellant ignored the demand and continued to drive the bulldozer over a tree and a wooden fence, knocking both down. The officers then ran along the side of the bulldozer, which was moving at less than five miles per hour, and yelled at appellant to stop. While the officers had their weapons trained on appellant, he stood up several times and shouted "Shoot me! Shoot me!" Eventually, appellant started driving toward an area where some children were playing; fearful that appellant would harm the children, the officer armed with a shotgun pumped three rounds into the tractor's engine, bringing it to a halt.

that date appellant argued with his then girlfriend (later wife) Tina and ended up following her as she drove to a fire station located in Alviso. Fireman Donald Tyson was standing outside the station when Tina drove up in a blue van followed closely by appellant in a pickup truck. Tina appeared very excited and was screaming. Appellant got out of his truck, walked over to the van and began pounding on it while Tina was inside. Tyson tried to intercede, but appellant, who is 6'4"' and weighed between 218 and 240 pounds at the time, began threatening Tyson and chased him, along with two other firemen, back into the firehouse. The captain of the firehouse called the police. After a few minutes, appellant drove away in the pickup truck, and the firemen brought Tina into the firehouse. Appellant returned shortly thereafter on foot, and attempted to set the van on fire by ripping out the fuel lines and igniting the fuel with matches. After this attempt failed, he yelled insults at the firemen in the station house and accused them of engaging in sex with Tina. After a few minutes appellant again left.

Appellant then stood up on the tractor and once again yelled at the officers to kill him; when they did not comply, appellant jumped down from the tractor. He then charged one of the officers, grabbed him, lifted him bodily, and slammed him to the ground. The other officer came to the first officer's assistance, and, after a violent struggle, they managed to subdue and handcuff appellant.

Appellant presented no real defense to the vandalism and misdemeanor assault charges. He said only that he had been very depressed, had earlier attempted suicide, and had decided that he would indirectly kill himself by threatening the police officers with the bulldozer until they shot him. In his closing argument defense counsel essentially conceded that appellant was guilty of vandalism and misdemeanor battery of a police officer. However, appellant did successfully defend against and was acquitted of charges that he had stolen the bulldozer (Veh.Code, § 10851) and had committed an assault with a deadly weapon--namely, the bulldozer.

Assault with a deadly weapon

The conviction for assault with a deadly weapon arose out of an incident at a New Year's Eve party celebrating the beginning of 1983. Appellant became angry at another guest and threw a chair at him. Martin Aalso, also a guest at the party, then approached appellant from behind, put his hand on appellant's arm and started to tell appellant not to break the furniture. Appellant immediately spun around and punched Aalso in the mouth. A group of guests then restrained appellant, and Aalso retaliated by punching...