People v. Johnson
| Decision Date | 04 February 1981 |
| Docket Number | Cr. 19966 |
| Citation | 171 Cal.Rptr. 471,115 Cal.App.3d 693 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Reggie Roschi JOHNSON, Defendant and Appellant. |
Robert L. Hersh, San Anselmo, for defendant and appellant.
George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen. Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Nathan D. Mihara, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
After deliberating four hours, a jury convicted appellant Reggie Johnson of assaulting with intent to murder Leo Mata (Pen.Code, § 217). The jury also found that appellant used a firearm in commission of the offense (Pen.Code, §§ 1203.06, subd. (a)(1), 12022.5) and that he intentionally inflicted great bodily injury upon Mata (Pen.Code, § 12022.7).
Consequently, Johnson herein is appealing a judgment sentencing him to the lower term of two years in punishment for the Penal Code section 217 conviction, with a two year enhancement for using a firearm. At trial, appellant principally relied upon self-defense. Three of his four contentions on appeal are without merit. Hereinafter we briefly explain our conclusions that (1) the warrantless police search of the passenger's compartment of appellant's automobile was proven to be entirely reasonable and appropriate in light of the total circumstances of record; (2) that the trial court did not err in finding that exigent circumstances justified the warrantless entry, search for and seizure (arrest) of appellant within the residence of Nora Mollique; and (3) the trial court's instructions correctly define "implied malice," i. e., in accord with People v. Heffington (1973) 32 Cal.App.3d 1, 107 Cal.Rptr. 859, as regards the charge of assault with intent to commit murder.
After exchange of views and lengthy deliberation thereon we are unanimous in our belief that the evidence adduced by the prosecution warranted jury instructions embodying the law of attempted voluntary manslaughter as required by People v. Sedeno (1974) 10 Cal.3d 703, 715-716, 112 Cal.Rptr. 1, 518 P.2d 913. In the judgment of the majority we hold that the trial court's failure to so instruct sua sponte clearly on the record presented was error requiring reversal of the Penal Code section 217 conviction. The dissenting view finds that error to be "invited error." Consequently, the Honorable Robert L. Dossee would affirm the judgment.
Appellant shot Mata twice at close range, seriously and perhaps permanently injuring him. The only eyewitnesses were the victim and his friends and they described the incident this way:
Mata could be physical, loud and argumentative when drunk. His reputation among police officers was that he "always gave you mouth." By 11:00 p. m., December 8, 1978, Mata had drunk a considerable quantity of beer and was very high on "speed" and marijuana. He stood in the middle of a narrow residential street in Pittsburg arguing with three to five friends as to whether he was capable of driving his motorcycle home. At two blacks walking on the opposite side of the street he shouted "nigger" and "we don't need your kind around here." He forced cars to slow down to avoid hitting him. He kicked a car he thought came too close to him. He told Rhonda Edwards to be quiet when she told him to get out of the street.
Because of Mata's position in the street, Johnson was forced to stop his car. Mata and another man approached the driver's window. Words were exchanged. Johnson asked whether Mata was trying to start trouble. Mata answered that if he wanted him to he would and called Johnson a "fucking nigger." Mata had his arms folded on the driver's window sill and was leaning over. Johnson warned Mata that he had a gun and that he would shoot Mata. Mata saw no gun and lunged at Johnson through the partially open window: "I was going to fight," Mata testified. Johnson fired two quick shots, hitting Mata in the throat and chest, and backed his car down the street and fired a wild third shot.
Johnson did not testify but this fragment of a recorded statement he had made to the police was played to the jury:
1
Shortly after the shooting Johnson's car was located at his parents' house and two spent and two live rounds were discovered within. Johnson's father then directed the police to another residence where Johnson stayed with his girl friend, Nora Mollique. Mollique permitted the police to enter the house to search for Johnson. They found him asleep, with a loaded gun nearby, and arrested him.
From eyewitness descriptions of the gunman and his car the police suspected appellant. They proceeded to his last known address and observed a car in the driveway matching the description given at the scene. The driver's window was shattered. Standing beside the car an officer observed "a spent cartridge casing in plain view on the floorboard of the driver side front seat." The car was then entered and searched.
Appellant does not contend that probable cause for the search was lacking. However, he points to the state constitutional rule forbidding a warrantless search of a vehicle upon probable cause in the absence of exigent circumstances (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417) and argues the absence of exigent circumstances. However, appellant's argument ignores established doctrine that, due to a number of different factors, 2 "theoretical" exigencies (People v. Minjares (1979) 24 Cal.3d 410, 418, 153 Cal.Rptr. 224, 591 P.2d 514, cert. den. 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117) permit a warrantless search of the passenger compartment of a car. Presently the law is that (Chambers v. Maroney (1970) 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419; People v. Hill (1974) 12 Cal.3d 731, 751, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Laursen (1972) 8 Cal.3d 192, 202, 104 Cal.Rptr. 425, 501 P.2d 1145; see also Texas v. White (1975) 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209; Wimberly, supra.) Inasmuch as the officers in the instant case had probable cause to believe that evidence pertaining to the shootings lay in Johnson's car, they were entitled to search it immediately in order to preserve that evidence. Obviously the mobility of the car, the vulnerability of the shells to seizure by third persons, the lateness of the hour, and the fact that Johnson was still at large constituted circumstances justifying as objectively reasonable an immediate warrantless search. (Cf. Wimberly, supra; People v. Dumas (1973) 9 Cal.3d 871, 884-885, 109 Cal.Rptr. 304, 512 P.2d 1208; see also People v. Gale (1973) 9 Cal.3d 788, 795-796, 108 Cal.Rptr. 852, 511 P.2d 1204.)
The police found Johnson's car in the driveway of his parents' house some 75 minutes after the shooting. After permitting them to search his house, Johnson's father informed the police that his son "stays with a girl named Nora Mollique" and gave them her address. The officers proceeded directly to Mollique's house. When she came to the door they informed her that they were looking for Reggie Johnson for an attempted murder and that they believed he was inside. Mollique consented to allow the officers in to search the house, whereupon they discovered Johnson asleep in bed and the weapon used in the shooting nearby.
Johnson moved to suppress the gun citing People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333, which held that warrantless arrests within the home are per se unreasonable in the constitutional sense in the absence of exigent circumstances. 3 (See also Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.) The Ramey court stated: (16 Cal.3d at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.)
Ramey, however, did not narrow the "hot pursuit" exception to the warrant requirement. (Warden v. Hayden (1967) 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782; People v. Gilbert (1965) 63 Cal.2d 690, 706, 47 Cal.Rptr. 909.) The court clarified this in People v. Escudero (1979) 23 Cal.3d 800, 153 Cal.Rptr. 825, 592 P.2d 312, reiterating that "in appropriate circumstances the fresh pursuit of a fleeing felon may constitute a sufficiently grave emergency to justify an exception to the warrant requirement and make it constitutionally reasonable for the police to enter a private dwelling without prior authorization of a magistrate." (Id., at p. 808, 153 Cal.Rptr. 825, 592 P.2d 312.) In Escudero the defendant was interrupted while burglarizing a house, was chased, escaped, and the police were called. The police searched unsuccessfully in the area where the defendant...
To continue reading
Request your trial