People v. Rasher

• Decision Date: 22 January 1970
• Docket Number: Cr. 16529
• Citation: 83 Cal.Rptr. 724,3 Cal.App.3d 798
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nolan B. RASHER, Defendant and Appellant.

Page 724

83 Cal.Rptr. 724

3 Cal.App.3d 798

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nolan B. RASHER, Defendant and Appellant.

Cr. 16529.

Court of Appeal, Second District, Division 1, California.

Jan. 22, 1970.

Dennis G. Merenbach, Santa Barbara, for appellant under appointment by the Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ivan Hoffman, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was charged with committing an assault with a deadly weapon upon Norman Rasher in violation of section 245, Penal Code. A jury returned two verdicts--not guilty of assault with a deadly weapon, and guilty of 'DRAWING OR EXHIBITING A DEADLY WEAPON IN A RUDE, THREATENING OR ANGRY MANNER, in violation of § 417 Penal Code of the State of California, a lesser included offense of Assault With a Deadly Weapon.' Defendant was sentenced to imprisonment in the county jail, whereupon the People filed a mentally ill petition (civil) and the court remanded defendant to custody for delivery to the county hospital pending hearing thereon. He appeals from the judgment.

Defendant is the brother of Norman Rasher; on October 14, 1968, he went to Rasher's place of employment and aiming a rifle first at him, then at Jean Howerton, a friend, and again at him and threatening both, fired a shot which struck a coffee cup; he again aimed at Rasher, then at Jean threatening both, backed out of the office and left. Rasher was slightly injured when pieces of the plastic cup flew up and struck him.

Appellant contends that 'section 417 is not necessarily a lesser included offense of section 245' and it was prejudicial error to give an instruction to that effect.

People v. Torres, 151 Cal.App.2d 542, 544--545, 312 P.2d 9, holds that as a matter of law a violation of section 417, Penal Code, ¹ is not a lesser and necessarily included offense in a violation of section 245, Penal Code; ² however, this is not really the issue here. It appearing from an examination of the record that there is overwhelming evidence of defendant's guilt of exhibiting and brandishing a loaded rifle in a threatening manner in violation of section 417, Penal Code, ³ the real issue is whether defendant was properly convicted of an offense with which he was not, but could have been (Kellett v. Superior Court, 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206) formally charged in the information. Because of an unusual set of circumstances, we conclude that he was.

Norman Rasher, head operator for Standard Oil and Gas Plant at Gaviota, was working the 3:00 to 11:30 p.m. shift; around 8:00 p.m. Jean Howerton, a friend, who had asked defendant to accompany her but he refused, brought his lunch. Rasher was sitting at his desk with his back to the door in a swivel chair; the desk was about eight feet from the door. Jean set a thermos of coffee and a sack of sandwiches on the desk, poured a cup of coffee for Rasher and sat down to Rasher's left at the end of the desk in a chair by the typewriter desk shelf. The cup of coffee had been placed on top of the typewriter and Rasher started to eat. Jean heard a car drive up and said, 'I guess (defendant) changed his mind and decided to come on up.' They looked up and saw defendant standing at the door holding Rasher's rifle; he was pointing it at Rasher. Rasher, who had the rifle about twenty years, kept it in his bedroom; he knew it was loaded with shells in the magazine but not in the chamber. When he saw the hammer pulled back he said to defendant, 'Do you realize there are shells in the magazine'; defendant answered, 'Yes, I know it's loaded.' Defendant did not hold the gun 'on the shoulder as a person would be aiming along the barrel, sighting' but held it 'somewhat down the arm a bit.' Rasher knew that type of gun to be 'exceptionally dangerous with the hammer back because it can be knocked off and go off.' Defendant said, 'Norman, who are you quoting'; Rasher told him he did not know what he meant. Then defendant pointed the gun at Jean and asked her who she was 'quoting.' Rasher started to get out of his chair thinking he could take the rifle from defendant but defendant told him to sit down or he would shoot him; Rasher sat down, then defendant pointed the rifle at him again and said, 'Did you know, Norman, that the Communists are trying to frame you. * * * Norman, I am going to shoot you.' It appeared to Rasher that defendant was going to shoot him but the instant defendant pulled the trigger 'he pulled the gun off and away' from Rasher and hit the coffee cup. Rasher testified that defendant is a good shot; they grew up together and hunted and practiced target shooting together; 'I think he deliberately took aim at the coffee cup.' As the bullet struck the cup the explosion scared Rasher and he went over backwards in the swivel chair; as he started to get up defendant told him to stay down or he would shoot him. While Rasher was still on the floor, defendant 'jacked another shell into the chamber.' Jean thought Rasher had been injured and started to go to him but defendant again pointed the gun at her and told her 'to set back down or he was going to shoot her.' Jean said, 'Please, Nolan (defendant), don't do that.' She testified, 'He (defendant) was just kind of going back and forth from Norman to I with the gun,' waving the gun back and forth between her and Rasher; then defendant stood there a little bit, sighed, backed out of the office pointing the rifle at them, the hammer still back on it, got in his car and left. Rasher estimated that the incident took about 10 or 15 minutes. Defendant did not testify.

The foregoing uncontradicted evidence offered by the People proves an almost, if not perfect case of exhibiting and brandishing a loaded firearm in a threatening manner in violation of section 417, Penal Code, a misdemeanor. (People v. Coffey, 67 Cal.2d 204, 222, 60 Cal.Rptr. 457, 430 P.2d 15.)

Defendant's conduct in relation to the trial proceedings leading to the giving of the instruction on section 417, Penal Code, and which now precludes him from urging error in that connection, had its genesis at the inception of the trial before any evidence was taken when he submitted to the court his requested instructions which more or less defined the issues of the trial. They included CALJIC 115 (rev.) (jury may convict of lesser offense) to the effect that assault with a deadly weapon 'necessarily includes the lesser offense of exhibiting a deadly weapon in a rude, threatening or angry manner,' and others relating to specific intent and diminished capacity. By the submission of these instructions the People and the court were placed on notice by defendant that he intended to rely on these theories of defense. In reliance thereon the cause was tried by both sides as though defendant could be convicted of either a violation of section 245, Penal Code, a felony, or section 417, Penal Code, a misdemeanor, or acquitted. Thus, the prosecution called Norman Rasher, Jean Howerton and Officer DaFoe; the defense consisted of the testimony of Dr. Wells, a psychiatrist, who testified that at the time of the shooting defendant could not form the specific intent to commit a battery upon a person because he was suffering from chronic schizophrenia which prevented him from having a full awareness of his actions at the time and he was governed by delusional thinking in such a way that he could not form a rational intent; and on rebuttal the People called Dr. Lambert, a psychiatrist, who testified that at the time of the offense defendant was mentally ill and it was a schizophrenic illness; however, the fact that a man suffers from schizophrenia does not necessarily mean that he does not have the capacity to commit a crime or form a specific intent to commit a battery. It was not until the conclusion of the trial, after all of the evidence was in and just before the jury arguments that defendant, wishing to take full advantage of Dr. Wells' testimony and submit the case to the jury solely on the issue of guilt of assault with a deadly weapon, or acquittal thereof on the defense of diminished capacity, sought to abandon the 'lesser offense' theory and withdraw his requested instruction thereon. At this point lengthy argument arose out of the propriety of the proposed instructions. The judge vacillated considerably on the issue whether specific intent was required for a violation of section 245--before the trial he had ruled that specific intent was an element; after argument he reversed that ruling, then when it was pointed out to him that the cause had been tried on that theory, he reversed himself again finally ruling that assault with a deadly weapon was a crime that required specific intent and the defense of diminished capacity was a valid one. Then believing that the testimony of Dr. Wells would support his defense of diminished capacity and that the jury would acquit him, defendant tried to take from the jury's consideration the misdemeanor offense (§ 417), and moved the court 'not to give any instruction regarding 417'; the motion was denied and defendant's requested instruction thereon was given on the court's own motion. After acquitting defendant of assault with a deadly weapon, the jury found defendant guilty of drawing or exhibiting a deadly weapon in a threatening manner in violation of section 417 and in accord with the instruction 'a lesser included offense of assault with a deadly weapon.' In the light of the evidence we do not think that in acquitting defendant of assault with a deadly weapon the jury felt the proof failed to come up to the standard of a felony, but rather as an act of leniency found him guilty of the misdemeanor. Actually the determination of his case was more favorable to defendant than the evidence warranted.

It makes little difference that the violation of section 417, Penal Code, was designated by the...