People v. Hood

• Decision Date: 18 December 1969
• Docket Number: Cr. 13651
• Citation: 1 Cal.3d 444,82 Cal.Rptr. 618
• Court: California Supreme Court
• Parties: , 462 P.2d 370 The PEOPLE, Plaintiff and Respondent, v. David Keith HOOD, Defendant and Appellant.

Page 618

82 Cal.Rptr. 618

1 Cal.3d 444, 462 P.2d 370

The PEOPLE, Plaintiff and Respondent, v. David Keith HOOD, Defendant and Appellant.

Cr. 13651.

Supreme Court of California In Bank.

Dec. 18, 1969.

Kelvin L. Taylor, Palo Alto, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John T. Murphy and Jerome C. Utz, Deputy Atty. Gens., for plaintiff and respondent.

TRAYNOR, Chief Justice.

An indictment charged defendant in Count I with assault with a deadly weapon upon a peace officer, Alfred Elia (Pen.Code, § 245, subd. (b)), in Count II with battery upon a peace officer, Donald Kemper (Pen.Code, §§ 242, 243), and in Count III with assault with intent to murder Officer Elia (Pen.Code, § 217). A jury found him guilty on Counts I and III and not guilty on Count II, and the trial court entered judgment on the verdicts. The trial court also ordered that 'Defendant shall serve the sentence in Count Three only * * * as the sentence in Count One * * * is withheld and will only be imposed if the sentence for Count Three is not carried out for any reason. * * *' Defendant appeals.

On September 11, 1967, at about 2:00 a.m., defendant, his brother Donald, and a friend, Leo Chilton, all of whom had been drinking for several hours, knocked on the door of the house of Susan Bueno, defendant's former girlfriend, and asked if they could use the bathroom. Susan said no, but defendant forced his way in and started to hit her. He knocked her to the floor and kicked her. Donald Hood then took Susan aside, and defendant, Chilton, and Gene Saunders, a friend of Susan's who was staying at the house, went to the kitchen and sat down.

Gilbert A. Nielsen, Susan's next-door neighbor, was awakened by the sound of Susan's screams and called the police. Officers Elia and Kemper responded to his call. After talking to Nielsen, they went to Susan's house, knocked on the door, which was opened by Stella Gonzales, Susan's cousin, and asked if 'Susie' was there. Miss Gonzales said, 'Yes, just a minute,' and in a few seconds Susan came running to the door crying. Officer Elia asked Susan if she had been beaten and who did it. She pointed to the kitchen and said, 'They're in there right now.' The two officers walked through the living room, where Susan, Susan's seven-year-old son Ronnie, and Stella remained, and went into the kitchen. There they observed defendant on the right-hand side of the room leaning against a door. On the left side of the kitchen, the three other men were seated at a table. Officer Elia walked to the middle of the room and questioned the men at the table. Defendant interrupted the questioning and asked Officer Elia if he had a search warrant. Officer Elia replied that he did not need one since the person who rented the house had given him permission to enter. Defendant then directed a stream of obscenities of Officer Elia, who turned and, according to his testimony, started to place defendant under arrest for a violation of Penal Code section 415 (using vulgar, profane, or indecent language within the presence or hearing of women or children). He got no further than to say, 'Okay fella, you are * * *,' when defendant swung at him with his fist. When Officer Kemper attempted to go to Officer Elia's assistance, Donald Hood jumped on him from behind. During the ensuing struggle, Officer Elia fell with defendant on top of him in a corner of a pantry adjoining the kitchen at the rear. While struggling on the floor, Officer Elia felt a tug at his gun belt and then heard two shots fired.

A third officer, Laurence Crocker, who had arrived at the house shortly after the other two officers, came into the kitchen as the scuffle between Officer Elia and defendant was beginning. After he had control of Donald Hood, he looked across the kitchen and saw defendant with a gun in his right hand. He testified that defendant pointed the gun towards Officer Elia's midsection and pulled the trigger twice.

Both Officers Crocker and Kemper testified that after the shots, defendant's arm came up over his head with the revolver in his hand. The struggle continued into the bathroom. Defendant was finally subdued when Officer Elia regained possession of the gun and held it against the side of defendant's neck. Officer Elia then noticed that defendant had shot him once in each leg.

The foregoing evidence is clearly sufficient to support the verdicts.

Defendant contends that the court failed properly to instruct the jury with respect to lesser included offenses to the offense charged in Count I, and that it also erred in instructing on the effect of intoxication with respect to the offenses charged in both Counts I and III.

The court instructed that 'The offense of assault with a deadly weapon, with which defendant * * * is charged in Count One of the indictment necessarily includes the lesser offense of assault.' This instruction incorrectly referred to the crime charged merely as assault with a deadly weapon (Pen.Code, § 245, subd. (a)) ¹ instead of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (b)). ² It thus served to blur the distinctions between these two offenses. Moreover, the court did not instruct the jury that assault with a deadly weapon upon a peace officer includes the lesser offenses of assault with a deadly weapon as well as simple assault, or that the jury could convict defendant of no more than assault with a deadly weapon if it found that Officer Elia was not engaged in the performance of his duties or that defendant neither knew nor reasonably should have known that he was so engaged. As instructed, the jury could only convict defendant of simple assault or assault with a deadly weapon upon a peace officer. Defendant, however, did not request an instruction that he could be found guilty of the lesser offense of assault with a deadly weapon. Accordingly, the question presented is whether the court erred in failing to give such an instruction on its own motion.

The general rule is that the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence, even though not requested to do so, but need not instruct on its own motion on specific points developed at the trial. (People v. Wilson (1967) 66 Cal.2d 749, 759, 59 Cal.Rptr. 156, 427 P.2d 820; People v. Jackson (1963) 59 Cal.2d 375, 380, 29 Cal.Rptr. 505, 379 P.2d 937; People v. Bevins (1960) 54 Cal.2d 71, 77, 4 Cal.Rptr. 504, 351 P.2d 776; People v. Wade (1959) 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Putnam (1942) 20 Cal.2d 885, 890, 129 P.2d 367; People v. Warren (1940) 16 Cal.2d 103, 116--117, 104 P.2d 1024. See People v. Martin (1919) 44 Cal.App. 45, 185 P. 1003; People v. Stirgios (1913) 23 Cal.App. 48, 136 P. 957; People v. Rogers (1912) 163 Cal. 476, 484, 126 P. 143 (first statement of the rule in substantially its present form); People v. Olsen (1889) 80 Cal. 122, 128--129, 22 P. 125 (rule implied in dictum).) In People v. Wade, supra, we pointed out that the 'general principles of law governing the case' are 'those principles of law commonly or closely and openly connected with the facts of the case before the court.' As we indicated in Wade, the rule is designed to afford protection against the inadvertence of trial counsel.

As the Court of Appeal noted in People v. Cooper (1968) 268 A.C.A. 12, 14--19, 73 Cal.Rptr. 608, the cases establishing this general rule are in conflict with another line of cases that hold that it is not error for the court to fail to instruct on lesser included offenses on its own motion, even though such an instruction would be supported by the evidence. (People v. Bailey (1904) 142 Cal. 434, 76 P. 49; People v. Hite (1901) 135 Cal. 76, 67 P. 57; People v. Franklin (1886) 70 Cal. 641, 11 P. 797; People v. Smith (1963) 223 Cal.App.2d 225, 237, 35 Cal.Rptr. 719; People v. Calderon (1957) 155 Cal.App.2d 526, 530, 318 P.2d 498; People v. Williams (1956) 141 Cal.App.2d 849, 853, 297 P.2d 759.) We believe that there is no basis for such an exception to the general rule. Accordingly, to the extent that the foregoing cases support a special rule for lesser included offenses, they are overruled.

We must therefore determine whether the distinction between assault with a deadly weapon upon a peace officer and assault with a deadly weapon is a principle of law 'commonly or closely and openly connected with the facts of the case before the court' (People v. Wade, supra), and whether the evidence in this case clearly indicated that Officer Elia might not have been engaged in the performance of his duties or that defendant might not have known or had reason to know that he was so engaged.

The officers were in uniform and defendant had reason to know they were lawfully present in the house to investigate a disturbance. If there was no evidence that Officer Elia exceeded the scope of his duties, the distinction between the two offenses would not be a significant issue. There was such evidence, however. Defendant testified that as Officer Elia turned and came toward him, he thought the officer was drawing his gun and was going to shoot him. This evidence was sufficient to raise the question whether Officer Elia had become angered and ceased to be engaged in the performance of his duties, or whether defendant could reasonably have so believed. Indeed, it was this very evidence that raised the issue of self-defense, on which the court instructed fully. Thus, the issue whether the officer exceeded the scope of his duties, or whether defendant reasonably believed he had, was 'closely and openly connected with the facts' before the court, and it was therefore error for the court to fail to instruct on the lesser included offense of assault with a deadly weapon. Moreover, that error was prejudicial, for it deprived defendant of his constitutional right to have the jury determine...