People v. McDonald

• Decision Date: 16 May 1986
• Citation: 181 Cal.App.3d 63,226 Cal.Rptr. 621
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 181 Cal.App.3d 63 181 Cal.App.3d 63 The PEOPLE, Plaintiff and Respondent, v. Robert McDONALD, Defendant and Appellant. Crim. 13576.

Page 621

226 Cal.Rptr. 621

Previously published at 181 Cal.App.3d 63

181 Cal.App.3d 63

The PEOPLE, Plaintiff and Respondent, v. Robert McDONALD, Defendant and Appellant.

Crim. 13576.

Court of Appeal, Third District, California.

May 16, 1986.

Certified for Partial Publication ^*

Review Granted Aug. 21, 1986.

Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Anthony L. Dicce and Maureen A. Daly, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the Supreme Court considered the permissible manner of proving a prior "serious felony" under Penal Code section 667. The court held that its earlier decision in People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, established two propositions relevant to the proof of prior serious felonies: "(1) that proof of a prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations; and (2) that the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime." (Jackson, supra, 37 Cal.3d at p. 835, 210 Cal.Rptr. 623, 694 P.2d 736.) In the published portion of this case we consider the effect of those propositions upon the proof of prior convictions for first degree burglary and for aggravated assault. As we shall explain, the proof of these prior convictions was consistent with those restrictions and the enhancements were therefore properly imposed. In the unpublished part of the opinion we consider the remaining issues and, finding no reversible error, affirm the judgment.

Defendant was found guilty by a jury of one count of aggravated assault (former Pen.Code, § 245, subd. (a)), with a special finding that he intentionally inflicted great bodily injury upon the victim (Pen.Code, § 12022.7). ¹ In a separate trial to the court defendant was found to have suffered three prior serious felony convictions, two for residential burglaries, and one for a felony in which the defendant personally used a dangerous or deadly weapon. ( §§ 667, 1192.7, subd. (c)(18) and (23).) Defendant was sentenced to a total unstayed prison term of 21 years. He launches a series of appellate assaults against his conviction and the imposition of the serious felony enhancements, all which we repel.

FACTS

This was a straightforward case of an alleged assault with a knife to which defendant admitted the act but claimed self-defense. The circumstances of the incident were presented through the testimony of After this display of Guiles' anger, defendant, who had walked down the hall, turned and said, "I'll teach you, you son of a bitch." Defendant then began walking towards Guiles at a fast pace and Guiles grabbed his door frame and lifted his foot to ward defendant off. Defendant pushed Guiles' leg away and stabbed him in the abdomen. Guiles fell to the floor and said, "Okay, that's it. I have had it." Defendant left and Guiles knocked on the door of a neighbor, Charles Brown, and asked him to call an ambulance. When Guiles arrived at the hospital he was observed to have suffered an abdominal wound of about three or four inches long and about four feet of his intestine was protruding from the wound. Guiles underwent an operation and remained in the hospital for five days.

the only two eyewitnesses, defendant and the victim, Lance Guiles. Guiles testified that on December 5, 1982, he and defendant were both residents of the Shasta Hotel in Sacramento. Guiles was a radio and television repairman and a few days before December 5th defendant took a radio to him to see whether it could be fixed. Guiles told defendant he could fix the radio for $5, and defendant told him that after fixing it he could use it for a few days since Guiles' own radio and television had been recently stolen. Guiles fixed the radio and on December 5th defendant came to his room and asked for it. Guiles gave defendant the radio and told him it was $5 to fix it. Defendant simply responded, "yeah, I know all about that," and walked away. Guiles went to his door and asked whether defendant was going to pay for the repair, and when defendant did not answer Guiles became angry, started calling defendant vulgar names, and stomped his foot.

Not unexpectedly, defendant's version was substantially different. According to defendant about two days before the incident in question Guiles came to his room and accused him of taking his radio and television. Guiles had a pocket knife, and he said he was going to kill the person who took his property. Defendant offered Guiles a radio which was in need of repair and told him that if he fixed it he could use it until defendant could find a buyer for it. On December 5, 1982, defendant spoke with another tenant of the Shasta Hotel and agreed to sell the radio to him for $5. When defendant went to Guiles' room to get the radio there was an argument because Guiles insisted that defendant owed money for the repair of the radio. Defendant told him that he had not agreed to pay for the repair of the radio, but had only agreed to let Guiles use it until it could be sold. Defendant retrieved the radio and took it to his room, and eventually took it to the purchaser's room. Defendant then returned to his room, left to visit another tenant of the building, and started to return to his room again.

Defendant testified that although he does not commonly carry a knife, on one trip to his room he put his knife in his pocket because he "didn't know if I was going to need it." He had been thinking about the trouble that Guiles had been giving him, some stabbings in the hotel prior to that, and some fortunes from fortune cookies. He had eaten a fortune cookie and found that the fortune stated "I might have to put a boot in somebody or in their ass, to that effect." He ate another cookie and the fortune predicted that he was definitely headed for trouble. ² When he passed Guiles' door on the way to his room after visiting in the building Guiles began calling him vulgar names. This made him angry, but he tried to "maintain" and decided to go visit some more. As he tried to walk out past Guiles' door, Guiles Defendant was allowed to present evidence that Guiles was the aggressor in a subsequent altercation. It appeared that sometime after the incident in question the Shasta Hotel was condemned. Charles Brown, who had lived next to Guiles in the Shasta Hotel, found a new apartment and on occasion was visited by Guiles. In September 1983, Brown met another former resident of the Shasta Hotel, a woman named Doris, and invited her to his home because she was looking for a place to live. Brown visited with Doris and a neighbor named Robert for a while, and eventually returned to his apartment leaving Doris and Robert together. Brown went to sleep but in the late afternoon was awakened by an argument between Guiles and Doris. Brown went to find out what was happening and his knock on Robert's door was answered by Guiles who went up to Brown's apartment. Doris told Brown that while they lived in the Shasta Hotel she and Guiles hated each other, and she asked to leave by Brown's back stairs so she could be sure Guiles did not follow her. Brown took Doris to his apartment where words were exchanged between Guiles and Doris, and Brown told Guiles to leave. Brown took Doris into the apartment. About five minutes after Brown and Doris entered the apartment Guiles began kicking on the door. Eventually Brown opened the door whereupon Guiles stabbed him with a knife. Brown, who is a very large individual, struck Guiles on the nose and knocked him down and then continued hitting him until the apartment manager told him to stop.

                kicked at him.  Defendant stepped back, but was struck in the leg by Guiles' foot.  Guiles came at defendant swinging his fists and managed to grab defendant's jacket which was partially pulled up over his head.  Defendant went down on one knee and struggled to get his hands out of his pockets.  At that time he "remembered instinct ... that I had the knife."   Although defendant had not seen Guiles with a knife on that occasion, he testified that he was afraid of getting hurt and did not know what Guiles was going to do.  Defendant got a little traction and pushed Guiles against the wall, and stabbed him with his knife.  Guiles fell to the ground and said, "That's enough, I've had it," so defendant went back to his room, washed his knife, and laid down.  He was arrested shortly thereafter
                

Guiles' version of this incident differed from Brown's. Guiles testified that he had been visiting Robert and that they had been drinking. Doris came over and wanted him to open a fresh bottle of wine just for her, so he called her names. She yelled back at him and left. He then decided to go get Charles to join them in a drink. When he got to Brown's apartment he dropped his glasses and could not find them. He saw Brown and Doris coming up the stairs and he asked whether they saw his glasses but they ignored him. When he could not locate his glasses he began knocking on Brown's door and although there was no answer he kept knocking because he knew they were there. Brown yelled at him, and then came out and began beating him on the head. He put up his hands to block the blows and was cut or slashed on the hand. As Brown continued to hit him, he pulled out his knife and stabbed him. Brown dropped to the floor and Guiles threw down his knife and ran to the police. It was established that after the incident Guiles did go to the police department, and he was observed to have a puncture wound on his hand.

In rebuttal the People were permitted to introduce evidence that defendant was the aggressor in a prior, unprovoked assault with a...