People v. Walker

• Decision Date: 12 June 1973
• Docket Number: Cr. 10761
• Citation: 32 Cal.App.3d 897,108 Cal.Rptr. 548
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William S. WALKER, Defendant and Appellant.

Page 548

108 Cal.Rptr. 548

32 Cal.App.3d 897

PEOPLE of the State of California, Plaintiff and Respondent, v. William S. WALKER, Defendant and Appellant.

Cr. 10761.

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

June 12, 1973.

As Amended June 28, 1973.

Golde, Strellis & Hall, Oakland, for appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Derald E. Granberg, Karl S. Mayer, Deputy Attys. Gen., San Francisco, for respondent.

THE COURT:

Defendant appeals from an order ¹ granting probation entered after a jury found him guilty of voluntary manslaughter (Pen.Code, § 192, subd. 1) as charged. He contends that: (1) the trial court erred to his prejudice by submitting the question of justifiable homicide to the jury (Pen.Code, § 197, subd. 4), and in refusing to grant his motions for a directed verdict, dismissal or acquittal on the same grounds; (2) the trial court erred in submitting to the jury for its determination as a question of fact an issue regarding the commission of a burglary; (3) the district attorney was guilty of prejudicial misconduct; and (4) the trial court erroneously restricted his voir dire examination of the jury.

The record reveals the following facts: On the evening of January 24, 1970, defendant, who lived with his family at 1319 Walnut Street in Berkeley, was preparing to go out to dinner with a houseguest, Thomas Nielsen. About 9 p.m., Nielsen and the Walkers' 9 1/2-year-old daughter, Elizabeth, were sitting on the front porch steps of the Walker residence, waiting for the others. The porch was dark. Nielsen noticed a group of four males walking and talking on the opposite side of the street. The group stopped, moved behind a bush, then crossed the street very quickly single file, in a crouched position, to take up a new hiding place behind the bushes in front of defendant's property. The group then moved between defendant's home and that of his next-door neighbor, Mrs. Camp. They disappeared past the level of the front of the Walker house. Defendant's daughter noticed them, too, at the time they crossed the street, and she became upset. Nielsen told the child to go get her father. He (Nielsen) moved down the stairs and peeked around the corner of the building. He observed figures moving in the bushes between the Walker and Camp residences.

Defendant testified that his daughter came to him and said that Mr. Nielsen wanted to speak to him outside. She sounded frightened. Walker went outside and spoke softly to Nielsen, who was still off the porch. Nielsen could hear the girl inside crying. Defendant asked Nielsen what was going on. Nielsen told defendant there were some people fooling around in the bushes. Walker left the porch and tried to look through the shrubbery that separated the Walker and Camp residences. He saw no one, and returned to the door, where his wife was. Defendant told his wife to call the police. He went inside the house, to the bathroom window, and tried to look out, but could see nothing. He then returned to the bedroom and armed himself with a rifle. He was 'pretty scared,' and wanted to protect himself. He went outside with the rifle, to the fence between the properties, hoping to be able to see what was happening at the Camp residence. At this point he saw three or four figures going down the Camp driveway toward the street carrying a television set. They dropped the television set and ran. Defendant cautiously followed them out to the sidewalk, and he observed three men running away, crouched over. Defendant was concerned for the safety of Mrs. Camp. He pounded on her front door and then banged on it with the butt of his rifle. He got no response to his loud banging and found the door locked. Defendant then moved to go to the rear of the Camp house but was confronted by another man who ran toward him from the shadows at the point in the driveway where the men had dropped the television set. The man was running in a crouched position with his hands out of sight under his jacket. When the man was about 3 to 6 feet from defendant, he paused, made a threatening gesture, and said, 'Don't you touch me, you or I'll kill you.' As the man ran around the defendant and toward the sidewalk, defendant spun around and shouted at him to stop. As the man got a little farther away, defendant again shouted, 'Hold it right there.' When the man continued to run, the defendant raised his rifle and fired one shot at him. At this time, the victim was about 35 to 40 yards away. As it was quite dark, defendant could not see the man clearly enough to know whether he was young or old, Caucasian or of another race. He could not describe him except to say that he was an adult. Defendant fired as he believed the man might have killed somebody. He wanted to stop him. He believed that he was still dangerous. Defendant decided that Mrs. Camp was either dead or not at home.

Nielsen heard the shot and cautiously moved to the front of defendant's property. At this time, he and defendant saw a car moving rapidly and noisily backwards out of view along Walnut Street. Defendant told his wife to again call the police and to remain on the telephone. After the police arrived a few moments later, defendant spoke to them inside his home and gave the rifle to an officer. Defendant made a statement to the police later that evening in which he did not mention the victim's threatening gesture. Defendant was arrested two or three weeks later.

The body of the victim, Van Allison Holt, was found in front of 1305 Walnut Street some distance from defendant's home. The victim, a 17-year-old Berkeley High School student, died of shock and hemorrhaging from a bullet that entered the rear and exited with a gaping hole in the front of his neck.

Mrs. Camp testified that she had left her home about 6:40 that evening and returned about 10 p.m. Her house was locked when she left and was found in disarray after her return. She identified the television set, and certain other items of property strewn about the streets, as belonging to her. She also identified a knife found in the victim's pocket as one of a set of knives in her home. Defendant testified that he regarded all of the men in the group as burglars who may have harmed Mrs. Camp and whom he caught fleeing from the scene of the burglary. On cross-examination, defendant acknowledged that he had not seen the victim inside Mrs. Camp's house, that he had never seen a weapon in the victim's hands, and that at the time he fired the gun, the victim was running away from him at a distance of 35 to 40 yards. Defendant aimed the gun and shot it from his shoulder.

The prosecution's rebuttal witness, William Thomas, Jr., testified that he was one of the group of four males involved and that on the evening in question, the entire group, including the victim, had been drinking wine. Thomas stated that the victim was intoxicated. Accordingly, the jury was instructed to consider the victim's state of intoxication in determining whether or not he had had the specific intent required for the commission of a burglary.

On this point defendant urges error on the part of the court in submitting to the jury for its determination the question of whether a burglary was in fact committed by the decedent. We agree with this contention.

It is error to submit to a jury as a question of fact an issue that on the record was one of law. (Huebotter v. Follett (1946) 27 Cal.2d 765, 770, 167 P.2d 193; Martin v. Hall (1971) 20 Cal.App.3d 414, 421, 97 Cal.Rptr. 730; Lysick v. Walcom (1968) 258 Cal.App.2d 136, 158, 65 Cal.Rptr. 406.)

'All questions of law . . . are to be decided by the court.' (Evid.Code, § 310, subd. (a).)

The evidence disclosed by the record in this case clearly demonstrated that a burglary of Mrs. Camp's home was in fact committed by the victim and his accomplices. Indeed, it was a burglary of the first degree in that it involved an inhabited dwelling house, and was committed in the nighttime; also, it appeared that the victim had armed himself with a knife during its commission. The prosecution attempted to demonstrate a diminished capacity defense as possibly affecting the victim's ability to form a specific intent to commit a burglary. In our opinion, such an attempt can only be characterized as a 'red herring.' The question of diminished capacity on the part of a victim is irrelevant in the context of evaluating the defense of justifiable homicide.

Before the taking of a human life will be excused, it is reasonable to require that the act in question be of serious magnitude. In short, it is reasonable to require that the act be of felony stature, rather than a misdemeanor. It is also reasonable to require a showing of necessity to take a life in order to apprehend.

But it is neither reasonable nor sensible to add an intangible, nonapparent factor into the formula. To suggest that the alleged diminished capacity of a victim can be shown to negate an otherwise valid defense of justifiable homicide would, for all practical purposes, obliterate that defense from its place in our system of criminal law.

Suppose that the felony here involved was a general rather than a specific intent crime? In that situation the defendant has no evidence concept, such as diminished capacity, to deal with and his defense of justifiable homicide is determined by the application of a reasonably objective standard, i.e., whether the overt elements of a felony were in fact present and whether--in order to apprehend the fleeing felon--the taking of his life was reasonably necessary.

The vitality of the defense of justifiable homicide should not be dependent nor contingent upon the state of mind of the victim.

It is one thing to consider diminished capacity in its role of a defensive or mitigating factor against a pending criminal charge. This is consistent with its other...