People v. Newton
| Decision Date | 29 May 1970 |
| Docket Number | Cr. 7753 |
| Citation | 87 Cal.Rptr. 394,8 Cal.App.3d 359 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Huey P. NEWTON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Fay Stender, San Francisco, for appellant.
Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.
Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.
Count One of an indictment issued by the Alameda County Grand Jury in November, 1967, charged defendant with the murder (Pen.Code, § 187) of John Frey; Count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace officer engaged in the performance of his duties (Pen.Code, § 245(b)); Count Three, with the kidnapping of Dell Ross. (Pen.Code, § 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.
After the People rested during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's motion for acquittal on Count Three (the Ross kidnapping). Similar motions, addressed to the other counts, were denied. The jury acquitted him of the Heanes assault charged in Count Two, but found him guilty of the voluntary manslaughter of Frey under Count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.
At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:
Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity and which bore license number AZM 489. Less than a minute later, Lord told Frey that 'we have got some PIN information coming out on that.' 1 Frey replied, ('Check,' in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was 'enroute' to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.
A few minutes later Frey asked Lord by radio, 'you got any information on this guy yet?' Explaining this call, Lord testified that Lord gave Frey the name 'LaVerne Williams' and asked him 'if there were a LaVerne Williams in the vehicle.' Frey replied in the affirmative. Lord told him there were a 'couple' of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.
Lord testified that under such circumstances '(w)e check and see if the warrants are still outstanding, first of all, and if they are, and then they (the officers outside) can ascertain if they have that person stopped on the street, then they take action concerning the warrant.' Pursuing this procedure in the radio conversation, he gave Frey an address for 'LaVerne Williams' and said 'Let me know if this is the same address or not.' Frey asked Lord, 'What's his description?' Lord replied
After another brief interval, and just before 5 a.m., this further exchange occurred by radio: The next relevant radio call, received at 5:03 a.m., was a '940B' ('an officer needs assistance immediately') from Officer Heanes at Seventh and Willow Streets.
Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets 'three to four minutes' after responding by radio to Officer Frey's 'cover call.' Officer Frey's police car was parked at the south crub of Seventh Street, east of Willow Street and facing east. A beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)
After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as 'LaVerne Williams.' While Frey remained in his that he fired at defendant's 'midsection,' addressed defendant as 'Mr. Williams,' and asked if he had any further identification. Defendant, still seated in the vehicle, said 'I am Huey Newton.' Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked 'if there was any particular reason why he should.' Heanes asked him 'if there was any reason why he didn't want to.' Frey then informed defendant that he was under arrest and ordered him out of the car.
Defendant got out of the Volkswagen and walked, 'rather briskly' and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the 'rear part' of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both 'arms down' at hip level in front of his body.
Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm 'momentarily' and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man 'raised his hands and stated to me he wasn't armed, and he had no intentions of harming me.' To the best of Heanes' knowledge, the man's hands were empty.
Heanes returned his attention to Officer Frey and defendant, who were 'on the trunk lid of my car (the third car in line) tussling.' The two were in 'actual physical contact' and 'seemed to be wrestling all over the trunk area of my car.' He next remembered being on his knees at the front door of Frey's (the second) car, approximately '30, 35 feet' from the other two men. Defendant was then facing him; Officer Frey was 'facing from the side' of defendant, toward the curb, and appeared to be 'hanging onto' him. Holding his gun in his left hand, Heanes airmed at defendant and fired 'at his midsection.' Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard 'other gunshots * * * from the area of where Officer Frey and * * * (defendant) * * * were tussling on the rear part of my car.' 2 Heanes did not see a gun in defendant's hand at any time. He next remembered 'laying' in Officer Frey's police car, and calling an 'emergency 940B' on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.
Henry Grier, a bus driver employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58 a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, 'about bumper to bumper,' west of Willow Street. 'Red lights' were flashing on the police cars. He also saw two uniformed police officers and two 'civilians' standing together in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turnaround point two blocks west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick up two bus passengers at Willow Street.
Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was 4--5 minutes after he passed them while headed west. He saw the same flashing lights on the police...
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