People v. Lee

• Decision Date: 16 August 2005
• Docket Number: No. B175291.,B175291.
• Citation: 32 Cal.Rptr.3d 745,131 Cal. App. 4th 1413
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pamela R. LEE, Defendant and Appellant.
• Court: California Court of Appeals

32 Cal.Rptr.3d 745

131 Cal.App.4th 1413

The PEOPLE, Plaintiff and Respondent, v.Pamela R. LEE, Defendant and Appellant.

No. B175291.

Court of Appeal, Second District, Division 8.

August 16, 2005.

Law Offices of Tracy Green and Tracy Green for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

FLIER, J.

AppellantPamela R. Lee is a retired deputy sheriff who fired her handgun to scare away two unleashed dogs that she encountered while walking her dog.She appeals her conviction for discharge of a firearm with gross negligence, contending that the trial court erred in refusing to instruct on self-defense.Respondent counters that the defense of self-defense does not apply to an attack by an animal, or that if it does apply, there was no substantial evidence to support it here.We hold that the defense of self-defense applies to an attack by an animal and that appellant's testimony provided evidentiary support for the denied instructions.We therefore reverse.

PROCEDURAL HISTORY

Count 1 of the information charged appellant with gross negligence in the discharge of a firearm, which is a serious felony.Appellant was also charged with attempted cruelty to an animal (count 2), carrying a concealed firearm (count 3), carrying a loaded firearm (count 4), and vandalism (count 5).Counts 2 and 5 were dismissed on motion of the People before appellant's first trial.The jurors at the first trial were instructed on two defenses, necessity and self-defense.They deadlocked on count 1 and found appellant not guilty as to counts 3 and 4.

The second trial on count 1 took place before a different judge and jury.The second jury was instructed on necessity but not on self-defense.It found appellant guilty.A motion for new trial was denied.The sentence was three years of formal probation.One of the probation conditions requires appellant to serve 180 days in jail or, in lieu of jail, to give 180 days of service to Cal-Trans, a tree farm, the Humane Society, or an animal shelter.This appeal followed.

FACTS

1.Prosecution Evidence

The prosecution presented testimony from four eyewitnesses, James King, Gregory Landeros, Ingrid Carlson, and Demetrios Sourapas.Its other witnesses were the arresting officer, the man whose car was struck by the bullet from appellant's gun, and a firearms expert.

A. James King

On January 8, 2003, King owned and managed a car repair shop, which was in a strip mall on South Azusa Avenue in West Covina.On the repair shop's north side was a Kentucky Fried Chicken restaurant.On its south side was a real estate office.To its west was a wooded area which ended with a large concrete wall.On its east side was a parking lot, edged by a grassy embankment which sloped up about 10 feet to the sidewalk of South Azusa Avenue.

Around 2:30 p.m. on January 8, 2003, King was entering a parked car outside of the repair shop when he noticed appellant walking north on the sidewalk of South Azusa Avenue.Appellant had a 100-pound Rottweiler on a leash.She was yelling at two stray dogs that were running around near a parked car in the parking lot beneath her.King estimated that the dogs were 25 feet from appellant, and weighed 25 to 30 pounds each."[E]very once in a while they would bark at her; [her] dog would bark, she would yell some more."After the yelling and barking continued for several minutes, appellant pulled out a black semiautomatic weapon.She pointed the gun at the dogs for 10 or 15 seconds, yelled at them, and returned the gun to her purse.She turned, took a step north on the sidewalk, turned back towards the dogs, took the weapon out, and pointed it at them again.After repeating this activity three or four times over a two-minute period, she fired the gun once.The bullet entered the hood of a parked car near the dogs.Appellant ran up the sidewalk with her dog.The two stray dogs ran away.

King was very definite that the stray dogs moved back and forth behind the parked car, but never advanced towards appellant.On cross-examination, he admitted that he was looking at an angle, and was too far away to see exactly what appellant did with the gun.He did not recall her exact words, but heard her "screaming at the dogs to run away."

B. Gregory Landeros

Landeros was a customer at the car repair shop who came outside when he"heard the commotion."He saw appellant and the Rottweiler walking north on the sidewalk, in the direction of two "medium-sized,""knee high" stray dogs in the parking lot below.Appellant was screaming and cursing at the dogs, which ran in circles and played together near a parked car.There were 10 or 15 feet between appellant and the dogs.Landeros heard no barking and saw nothing to suggest that the dogs were about to attack appellant.Three or four times, within the space of a minute, appellant pulled a firearm in and out of a pouch she was wearing."Then she pointed at the dogs kind of but more towards the gold car and just shot."She walked off briskly with her dog, and the stray dogs ran away.

On cross-examination, Landeros testified that he was 50 to 100 feet from appellant when he made his observations.He could hear exactly what she yelled, which was, "Get the f___ away from me."He was not able to see whether the dogs bared their fangs at appellant, but he thought their mouths were shut.

C. Ingrid Carlson

Carlson was working inside of the real estate office next to the car repair shop.She looked outside when her own dog started to bark at the dogs outside.She saw appellant walking a "lumbering and lethargic" dog on a leash.Appellant was shouting at an unleashed dog, which was a "German Shepherd mix."Several times, appellant walked, stopped, walked back, pulled a handgun out, put it away, and resumed walking.Carlson was surprised to see the gun, as businesses were open and there were numerous cars moving through the parking lot.The dog stayed on the pavement, did not go onto the grassy area or approach appellant, and did nothing to suggest it was going to attack her.Finally, appellant shot the gun and ran up the sidewalk.The dog ran away, accompanied by a second unleashed dog, which Carlson observed at that time.

According to Carlson, the stray dog was "10 to 20 feet" from appellant when the shot was fired.At the preliminary hearing, she had described that distance as "`six to eight feet.'"

D. Demetrios Sourapas

Sourapas was working at the auto shop that day.He saw that appellant was walking a "very big" dog.Shortly after that he saw appellant"being approached by a couple of dogs."The dogs were "moving in her direction."They were "not walking right toward, just in the general direction of the dogs with her dog.Dogs attract dogs."They"looked like curious dogs," and did nothing to suggest they were about to attack.They were small enough to be picked up with one arm, "a little big bigger than a Chihuahua."They were "about 20 feet" from appellant, towards the rear passenger side of a parked car in the parking lot.Appellant yelled at the dogs, to no effect.The dogs were barking, but they"pretty much kept their distance," and did not get up on the grassy area.Appellant pulled a handgun in and out of a handbag a few times, and then fired it.The shot scared the dogs away.

On cross-examination, Sourapas testified that when he saw appellant, he was 30 to 40 feet away, just outside of one of the auto bays of the repair shop.He could see the dog's faces but could not see their teeth.They were far from him, but "fairly close" to appellant.He could not hear what appellant was yelling.

E.The Arresting Officer

Officer Joseph Serrano responded to a call about the gunshot.After speaking with Carlson, he located appellant and her dog, running on the sidewalk north of the area.Serrano stopped his patrol car and drew his gun.He ordered appellant to lie on the ground and not reach for her tote bag.Inside of the bag, he found a loaded semiautomatic handgun.

F.The Owner of the Car

Juan Leon was at work inside of the real estate office.His car was parked outside.After the shot was fired, he discovered that a bullet had gone through the hood of his car.The bullet was never found.

G.The Prosecution's Firearms Expert

Don Preston, a West Covina police officer and firearms expert, testified that there were substantial dangers from the firing of the gun, while businesses were open and numerous vehicles and people were in the parking lot.He was concerned about where the bullet might go if it missed its target or was deflected by hitting metal or asphalt.Factors to be considered included the area where the gun was discharged, the backstop, whether the intended target was struck with the projectile, the threat that the dogs posed, and the distance to the surrounding buildings.In his opinion, if there was any distance between the weapon and the target, it was necessary to sight the weapon.He recognized, however, that appellant would have received handgun training when she was a sheriff's deputy, and that the closer the attacker was, the less time there was to react.

2.Defense Testimony

Appellant testified that she was an active deputy with the Los Angeles County Sheriff's Department between 1988 and 1994.After that she retired to pursue other career opportunities.Before she entered the Sheriff's Academy, she had 40 hours of firearm training while studying for her degree in crime and criminal justice.At the Sheriff's Academy, she had 84 hours of firearm training.As an active deputy, she routinely met qualifying requirements by shooting at the firing range.She also took an additional eight-hour course on the particular handgun she used here.After she left the sheriff's department, she continued to practice with the...