People v. McKelvy

• Decision Date: 04 September 1987
• Citation: 239 Cal.Rptr. 782,194 Cal.App.3d 694
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George McKELVY, Defendant and Appellant. A034980.

Page 782

239 Cal.Rptr. 782

194 Cal.App.3d 694

The PEOPLE, Plaintiff and Respondent, v. George McKELVY, Defendant and Appellant.

A034980.

Court of Appeal, First District, Division 2, California.

Sept. 4, 1987.

Certified for Partial Publication ^*

Frank O. Bell, Jr., State Public Defender, Linda Feldman, Deputy Public Defender, Heather Wagner, San Francisco, George McKelvy, California Medical Facility, Vacaville, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

George McKelvy appeals from convictions of mayhem (Pen.Code, § 203) and assault with a deadly weapon. (Pen.Code, § 245, subd. (a)(1).) The jury found true allegations that appellant personally used a deadly weapon in the commission of both offenses (Pen.Code, §§ 12022, subd. (b), 1192.7, subd. (c)(23)) and found true an allegation that he intentionally inflicted great bodily injury in the commission of the assault. (Pen.Code, § 12022.7.) The court found that appellant had been convicted of a previous serious felony within the meaning of Penal Code sections 667 and 1192.7.

Appellant contends that the trial court committed prejudicial error in failing to instruct on felony assault and battery as lesser included offenses under the mayhem charge; in failing to instruct sua sponte that an honest but unreasonable belief in the need for self-defense negates the malice required for a mayhem conviction; in admitting a statement allegedly obtained in violation of appellant's Miranda rights; and in eliciting irrelevant evidence concerning an uncharged act of violence by appellant. We affirm.

STATEMENT OF FACTS

At about 6:30 p.m. on January 6, 1986, Brenda Birch ended her shift as a bartender at the Pioneer Bar in San Francisco and was sitting at a table in the bar with a friend, Charles Skolovsky. Birch had had two beers during the course of the day, much earlier, and was sipping another. Appellant, paralyzed from the chest down and confined to a wheelchair, entered the bar, picked up a pool cue and went to the pool table.

According to Birch, appellant came toward her, licking his lips and saying something like, "Baby, would I like to fuck you." Birch, directly facing appellant, began to stand up to verbally protest; before she could make a statement to appellant, he hit her in the left eye with a sudden upward thrust of the round end of the pool cue. Birch immediately lost sight in the eye; she spent five days in the hospital, had surgery on the eye, and will not regain her vision.

Skolovsky testified that as he was sitting at the table with Birch, he saw appellant a couple of feet from the opposite side of the table looking at Birch in a lecherous manner. Birch said something like, "Get out of here, you asshole." Skolovsky saw appellant hurl a cue stick directly at Birch's left eye and heard the eye split. Appellant had a look of satisfaction on his face. Birch had not hit appellant or interfered with his pool game. Appellant wheeled toward the door of the bar but was prevented from leaving by a customer. Skolovsky had had four and a half beers since 4:00 p.m.; he felt "mellow" but could walk well and his perception was fine.

Paul Clattenburg, the bartender, saw appellant playing pool and bothering Birch; words were exchanged between the two and Birch told appellant to leave her alone. Clattenberg testified that appellant began to play pool, then backed up and hit Birch in the eye with a backward motion of his arm. Birch was still sitting and did not have weapons or anything in her hands. Clattenburg did not actually see the moment of impact; he was waiting on a customer and looked at Birch when he heard her start to scream. Appellant made some derogatory remarks to the bartenders and threw a pool ball across the bar at Clattenburg.

Police officer Matthew Krimsky testified that he arrived with his partner at the Pioneer Bar at about 7:10 p.m., having been instructed by radio broadcast to proceed there because of a barroom fight in progress. Krimsky observed Birch holding a towel to her left eye, which appeared to have been perforated and was flowing blood and a yellow fluid. She was not, in Krimsky's opinion, under the influence of alcohol. Birch told Krimsky that a black man in a wheelchair had put out her eye with a pool cue. Krimsky walked over to appellant and asked what happened; appellant responded that "Birch fucked with me so I hit her."

Krimsky placed appellant under arrest, took him to the Hall of Justice and advised him of his Miranda rights. Appellant told Krimsky that he understood and wished to make a statement. The handwritten statement, largely illegible, was read into the record by Krimsky: "I, George McKelvy Jr., was play pool game when a woman came up to me and start giving me a lot of problem and spill my pool ball and call me--I can't make out the word--my name also, put the pool ball off the table and put a hit on me, came and I hit her. She hit me with a pool ball and I hit her back with pool stick back." ¹

Appellant testified that he had come to the bar with a friend to play pool. As he was waiting to play, Birch came over to him and told him he didn't belong in the bar and she wanted him to leave. She seemed drunk and appellant paid no attention to her. She was carrying a bottle from which she was drinking. Birch went and sat down, then returned as appellant was preparing to shoot. She still had the bottle in her hand, but this time seemed as though she was about to strike appellant with it. Appellant held the pool cue with both hands in front of himself and to keep his balance and "to protect myself because I was scared of her." Appellant lost balance and Birch, who was stumbling and drunk, fell into the cue. Appellant fell from the wheelchair, his friend helped him up and appellant stayed where he was until the police came. The injury to Birch was an accident.

Appellant denied speaking with Officer Krimsky at the bar. He testified that he spoke with Krimsky's partner, telling him the same version of the events as he related at trial. Appellant denied stating that "Birch fucked with me while I was playing pool so I hit her." As for his written statement, appellant testified that he wrote that he hit Birch because he did not know how to write what happened; he did not actually hit her, but was afraid that she was going to hit him. He did not write that Birch fell or that the injury was an accident because he was confused.

The medical resident who initially examined Birch at San Francisco General Hospital testified that although it is often difficult to assess whether emergency room patients are intoxicated because of the emotional condition induced by their injuries, Birch was alert and substantially well-oriented to understand what was happening and give an informed consent to surgery. Dr. Robert Hardy, who treated Birch, testified that she suffered a corneal laceration, an extensive rupture of her left eyeball. The laceration was closed in surgery lasting three hours. The eyeball was not removed but the vision loss was probably permanent. Hardy testified that a great deal of force would be required to Jose Ferrer, a forensic pathologist, testified that the injury to Birch's eye could not have been caused by her falling into the cue stick because unless she fell from the ceiling the force would have been insufficient to cause the extensive injury. The injury was more consistent with having been caused by an upward thrusting of the pool cue.

produce this type of injury, the worst injury an eyeball can receive.

DISCUSSION

A. ^**

B. Honest but Unreasonable Belief in the Need to Defend

In order to be convicted of mayhem, a defendant must be found to have acted "maliciously," that is, with "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act." ³ (Pen.Code, §§ 203, 7.) Appellant urges that an honest but unreasonable belief in the need to defend oneself negates the "malice" required for a mayhem conviction and that his conviction must be reversed because the trial court did not so instruct the jury sua sponte. The argument is based on People v. Flannel (1979) 25 Cal.3d 668, 679, 683, 160 Cal.Rptr. 84, 603 P.2d 1, which held that trial courts have a duty to instruct sua sponte that an honest but unreasonable belief in the need to defend against imminent peril to life or great bodily injury negates the element of malice aforethought required for a conviction of murder. In the absence of malice aforethought, an unlawful homicide is reduced from murder to manslaughter (see People v. Flannel, supra, 25 Cal.3d at p. 677, 160 Cal.Rptr. 84, 603 P.2d 1; People v. Conley (1966) 64 Cal.2d 310, 318, 49 Cal.Rptr. 815, 411 P.2d 911; Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 82-84), the "catch-all" concept covering all homicides which are neither murder nor innocent. (People v. Flannel, supra, 25 Cal.3d at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1, Perkins, supra, at p. 83; LaFave & Scott, Criminal Law (1982) p. 571.)

Flannel recognized that a mistaken but genuinely held belief in the need for self-defense is inconsistent with the state of mind required for murder. "[A] person who carefully weighs a course of action, and chooses to kill after considering reasons for and against, is normally capable of comprehending his societal duty to act within the law. 'If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.' (Italics added.) ... No matter how the mistaken assessment [of a need for self-defense] is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a...