People v. Garcia

• Decision Date: 08 August 1969
• Docket Number: Cr. 16110
• Citation: 275 Cal.App.2d 517,79 Cal.Rptr. 833
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Anthony GARCIA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 833

79 Cal.Rptr. 833

275 Cal.App.2d 517

The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Anthony GARCIA, Defendant and Appellant.

Cr. 16110.

Court of Appeal, Second District, Division 1, California.

Aug. 8, 1969.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was convicted of assault with a deadly weapon (§ 245, Pen.Code); he appeals from the judgment.

Unable to sleep, Joe Godiness frequently walks at night; around 3 a.m. on July 7, 1968, he was walking in front of his residence when he saw defendant walk across the street; defendant appeared to have been drinking but 'was not falling all over himself' and was able to think rationally; he conversed with defendant and scolded him because someone had told him defendant had 'dirtied' his car; defendant denied he had done so and challenged him to a fight but Godiness refused and defendant departed. About half an hour later, while Godiness was still walking in front of his house, defendant approached him carrying a bow and arrow; defendant 'was pointing it (arrow) at (him).' Because half an hour earlier defendant wanted to fight him and he saw defendant approach with a bow and the arrow pointed at him, Godiness hit and kicked him in an effort to disarm him at which time defendant shot Godiness in the right arm; with the arrow stuck 'clean through' his arm, Godiness picked up a wooden bed slat about three feet long and disarmed defendant taking his bow and a second arrow which he was afraid defendant might also use on him. During the time Godiness tried to disarm defendant, defendant remained on his feet and at no time fell to the around. Godiness went into his house, broke the arrow and pulled it out of his shoulder.

Around 5:20 a.m. Officers Beno and Sullenger, driving on 8th Street, saw defendant walk quickly and erratically carrying a garden hoe in the direction of Godiness' residence; he appeared to have been drinking and his right pants leg was torn at the knee; while interviewing defendant Godiness' son came up and the four of them went to his residence where they found Godiness with a severe wound going from the front through to the other side of his body in the area of the right arm and shoulder; Godiness gave the officers a bow and two arrows, one broken with wet blood stains on it; defendant was then arrested and after being advised of his constitutional rights told the officers he was carrying the hoe because he 'was going back with the hoe to take care of Mr. Godiness.' He did not tell the officers he had been attacked first by two men with boards.

Defendant testified he was on his way home from seeing a girl when he saw Godiness and said hello, but Godiness pushed him away, then accused him of doing something to his car; when he denied this, Godiness became angry; after Godiness calmed down he left saying he would be back; he was not angry but intended to return to try to sell Godiness a bow and arrows; when he returned with the bow and arrows he was attacked with boards by Godiness and another man whom he could not identify; they knocked him down on the ground and he could not get up but when he was trying to get back on his feet he jabbed Godiness with a forward thrust of the arrow; at the time he was detained by the officers he was returning to Godiness' residence with the hoe because he was then very angry.

Appellant's claim that the evidence is insufficient to conclude 'beyond a reasonable doubt' that when he returned with the bow and arrow an assault with a deadly weapon was committed, is predicated on the theory that the bow and arrow did not constitute a deadly weapon likely to produce death or great bodily injury because the arrow was not 'in firing position' or pointed at Godiness, and there can be no assault with a deadly weapon unless the assailant has the present ability to carry it out. He argues that he did not approach Godiness with the bow readied for firing--an arched or 'loaded' bow--or in a threatening manner, Godiness was the actual aggressor and in self-defense he thrust the arrow by hand into Godiness' shoulder. This argument is one which should be made to the trier of fact and not to an appellate court. Appellant in effect requests us to reweigh and reinterpret the evidence in a manner consistent with his innocence, but such a determination is the function of the trier of fact; at this stage the test is not whether the evidence may be reconciled with innocence but whether there is substantial evidence in the record on appeal to warrant the inference of guilt drawn by the trier below. (PEOPLE V. TEALE, 70 CAL.2D ---, ---, 75 CAL.RPTR. 172, 450 P.2D 564;^A PEOPLE V. BRADFORD, 70 CAL.2D ---, ---, 74 CAL.RPTR. 726, 450 P.2D 46;^B People v. Saterfield, 65 Cal.2d 752, 759, 56 Cal.Rptr. 338, 423 P.2d 266; People v. Hillery, 62 Cal.2d 692, 702--703, 44 Cal.Rptr. 30, 401 P.2d 382.)

'It is the trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' (People v. Robillard (1960) 55 Cal.2d 88, 93, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086; accord, People v. Love (1960) 53 Cal.2d 843, 850--851, 3 Cal.Rptr. 665, 350 P.2d 705; People v. Daugherty (1953) 40 Cal.2d 876, 884--886, 256 P.2d 911; People v. Newland (1940) 15 Cal.2d 678, 680--683, 104 P.2d 778.)' (People v. Hillery, 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 36, 401 P.2d 382, 388.) Viewing the evidence in a light most favorable to the respondent (People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049), we find ample evidence to support each element of the offense charged.

The bow and arrow held in a firing position with the arrow pointed at the victim in such a way as it could be fired in an instant constituted a deadly weapon; it is similar to a revolver with the cartridge in it ready to fire which has been held to be a deadly weapon. (People v. Sandoval, 222 Cal.App.2d 348, 351, 35 Cal.Rptr. 227; People v. Roshid, 191 Cal.App.2d 692, 694, 12 Cal.Rptr. 794.) The manner in which defendant held for use the bow and arrow is sufficient to constitute an assault with a deadly weapon. (People v. McCoy, 25 Cal.2d 177, 189, 153 P.2d 315.) The record establishes that after defendant challenged Godiness to a fight and the latter refused, defendant told him he was coming back; a half hour later defendant approached Godiness carrying a bow and arrow which he pointed at him. While Godiness testified that because of the darkness and 'it happened so quick' he would not say exactly how defendant held the bow or in what position he was standing, he did testify that defendant was carrying something on his back and holding a bow and arrow in his hand, and 'I believe he was pointing it at me. * * * The arrow.' In answer to the question, 'Do you know how the arrow got into your arm?' Godiness replied, 'It was shot, sir.' He testified further that he hit and kicked defendant to disarm him and then was shot; in response to why he hit defendant, Godiness said, 'Because I saw him with the weapon. He was coming like that * * * I thought I was...