People v. Superior Court (Day)

• Decision Date: 25 November 1985
• Citation: 174 Cal.App.3d 1008,220 Cal.Rptr. 330
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. CONTRA COSTA COUNTY SUPERIOR COURT, Respondent, Barbara Jane DAY, Real Party in Interest. A031194.

Page 330

220 Cal.Rptr. 330

174 Cal.App.3d 1008

PEOPLE of the State of California, Petitioner, v. CONTRA COSTA COUNTY SUPERIOR COURT, Respondent Barbara Jane DAY, Real Party in Interest.

A031194.

Court of Appeal, First District, Division 5, California.

Nov. 25, 1985.

Review Denied March 12, 1986.

John K. Van de Kamp, State Atty. Gen., Eugene W. Kaster, Kristofer Jorstad, Deputy State Attys. Gen., San Francisco, for petitioner.

No appearance for respondent.

William Everett Glass, Law Offices of William E. Glass, Martinez, for real party in interest.

HANING, Associate Justice.

The People seek a writ of mandate to compel the superior court to reinstate a murder charge dismissed under authority of Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241. We agree with the People that the murder charge was improperly dismissed.

Real party Barbara Jane Day shot and killed her estranged husband Dennis at the culmination of a domestic quarrel. The magistrate held Day to answer for voluntary manslaughter, but declined to hold her to answer on the companion charge of murder. The People refiled the murder charge in the information, and Day moved to dismiss the allegation under Penal Code section 995. Day argued the magistrate made factual findings fatal to the murder charge, precluding its refiling in superior court under the rule laid down by the Jones decision. The superior court agreed and dismissed the charge, in effect forcing the People to proceed only on a charge of voluntary manslaughter. The People challenged the dismissal by this petition for writ of mandate. We stayed real party's manslaughter trial, issued the alternative writ, and heard oral argument. For the reasons set forth below, we grant the peremptory writ. ¹

A.

The issues require us to set forth in some detail the evidence presented at the preliminary hearing. The evidence comprises testimony of investigating officers, a criminalist and autopsy physician, and Day's post-arrest statements to police.

At the time of the homicide Day and her husband were separated. Day had custody of the couple's young son Jeffrey, subject to Dennis' rights of visitation. On July 28, 1984, Day was supposed to bring Jeffrey to Dennis' home by a certain time in the evening; Dennis and Jeffrey were to go camping the next morning. Day was late and an argument ensued. Dennis eventually told Day to take Jeffrey home with her for the night, and Dennis would pick him up at home at 6:00 a.m.

When Day and Jeffrey got home, the boy announced he no longer wanted to go camping with his father. Day called Dennis at 3:00 a.m. with this news, but Dennis insisted on coming over as planned. Day then loaded her .380 Mauser automatic pistol and went to sleep on the living room couch, with the weapon in her purse within reach. Day told police she habitually loaded the pistol at night, slept with it nearby, and unloaded it in the morning. She began the habit for her and Jeffrey's protection, when a mental patient wandered away from a local hospital and was found sleeping naked in a bathtub in a nearby home under construction. Day offered no explanation why she slept on the couch facing the front door of her home, through which Dennis would presumably enter, instead of in her bedroom.

Dennis arrived as scheduled and let himself in without waking Day, evidently with his own key. Day woke up to the sound of Dennis shouting and screaming at her. The couple began to argue. Dennis was "yelling, screaming, ranting and raving;" he threatened to kill Day if she didn't "shut up and sit down," and told her he would "bash her face in so her own mother wouldn't recognize her." The argument, in Day's words, "went on and on and on and on and I just couldn't go on." Dennis "got that look in his eye" which Day had seen "one too many times" when Dennis had beaten her in the past. She reached into her purse and pulled out the pistol.

At this point Dennis was standing between Day and the front door, about eight to ten feet away. When Day pulled the gun Dennis advanced toward her. According to one of her post-arrest statements, Day pointed the pistol in Dennis' direction, closed her eyes, and fired; in another statement Day said she "aimed" the weapon in one direction to avoid shooting in another, presumably to avoid hitting Jeffrey who was in the room at the time. Day claimed she fired after Dennis started toward her, but also said he was eight to ten feet away when she fired. Day fired two shots: one hit the front doorjamb, and the other struck Dennis in a rib and deflected into the aorta, killing him in a matter of moments. Day claimed she acted out of fear that her life was in danger.

Although Dennis was advancing upon Day at the moment of the shooting, he had not actually struck her. ² He brandished no weapon and none was found on or near his body. The record indicates a prior history of wifebeating, however, and Dennis stood six feet two inches and weighed two hundred pounds; Day stood five feet nine inches and weighed ninety to one hundred pounds.

The facts thus far are taken largely from Day's post-arrest statements to police. They strongly suggest the killing occurred without the malice necessary for murder, either in self-defense or the heat of passion. However, certain physical evidence, related by investigating officers, a criminalist, and the autopsy physician, is inconsistent with Day's account in significant respects.

The criminalist testified that the entry wound was in Dennis' back, about halfway between the midline and the shoulder. Furthermore, the wound bore gunpowder stipplings, establishing that the fatal shot was fired from a distance of six to eighteen inches. A close-range wound in the back does not immediately harmonize with Day's claim that she fired on Dennis as he was several feet away and advancing toward her. The point was developed on cross-examination of several witnesses. An investigating police officer admitted it was "possible" for a six-foot man to traverse "six to eight feet" in "one or two steps." The pathologist and the criminalist both admitted the back wound was "consistent" with the inference that Dennis advanced upon Day, covered the intervening distance, and turned or swung to the left before she fired at close range. Day, however, never mentioned in any of her statements that Dennis traversed the intervening distance and turned before she fired the shot. The pathologist admitted it was also "possible" that the bullet was fired straight into the back while Dennis was not turning or swinging, but facing away.

Day also told police Dennis "immediately collapsed" when hit, and had "fallen toward the front door in a crouched position." Dennis' immediate collapse was confirmed by the pathologist's opinion. Assuming arguendo, the defense theory that Dennis covered the entire distance to where Day was standing, the evidence poses another inconsistency. Since Day claimed her husband "immediately collapsed" when shot, his body should have been found near Day's position, by the couch. This would be consistent with the close-range gunshot wound. Instead the body was found inside the front door some 12 to 14 feet from the couch. The defense theory offered to explain the evidence of the close proximity of the gunshot wound is therefore inconsistent with the position of the body.

The district attorney charged Day with both murder and voluntary manslaughter in the complaint. ³ At the preliminary hearing, Day sought to defeat a holding order on either charge by asserting the exonerating defenses of self-defense and defense of habitation. The magistrate rejected defense of habitation as a matter of law, on the theory that Dennis was legally on the premises to exercise visitation rights, and was therefore not an "intruder." He then indicated self-defense posed factual issues reserved for the trier of fact. He also noted there was "substantial evidence that the setting in which [the killing] took place was argument, heat of passion," and indicated an argument in favor of a holding order for murder would be an "unnecessary argument" that "doesn't seem to relate to my view of the evidence." He held Day to answer for voluntary manslaughter only, and made these remarks: "[T]he evidence [of self-defense] in my view is of a nature that while it may well be adequate for a finder of fact at trial to hold off on a finding of guilt beyond a reasonable doubt, it's not a strong enough case on the evidence ... simply not adequate to prevent a holding order on the homicide given the level of proof that applies to preliminary hearing[s]. [p] Accordingly, I'm going to hold the defendant to answer for the felony of voluntary manslaughter ... finding adequate evidence to form a strong suspicion that the crime ... of voluntary manslaughter has been committed. [p] [I]t was quite clear that the contested facts lay more in the area of the defenses than the actual death of Mr. Day or at whose hands he died. The issues are complex.... [The] issues of reasonableness of force, reasonableness of fear, great bodily injury and the like are jury issues and not issues to be lightly taken from a jury."

The magistrate refused a holding order for murder, but made no other remarks pertinent to the evidence of that charge save those just quoted above.

The district attorney refiled the murder charge in the information. Day moved to dismiss under Penal Code section 995, arguing that the magistrate had made a factual finding that she acted without malice, a finding fatal to the murder charge which barred its refiling under the Jones doctrine. The superior court agreed. Admitting the question of whether the magistrate made Jones findings was "not altogether clear," the court apparently construed the record as containing an implied finding of fact that Day acted without malice. Quoting the magistrate's conclusion that the evidence was sufficient for manslaughter, the superior...