People v. Webber

• Decision Date: 26 March 1991
• Docket Number: No. B046298,B046298
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Edgar WEBBER, Defendant and Appellant.

Page 437

279 Cal.Rptr. 437

228 Cal.App.3d 1146

The PEOPLE, Plaintiff and Respondent, v. Robert Edgar WEBBER, Defendant and Appellant.

No. B046298.

Court of Appeal, Second District, Division 7, California.

March 26, 1991.

Review Denied June 19, 1991.

David Harrell, Ventura and Maureen DeMaio, Santa Barbara, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Juliet H. Swoboda, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Defendant, who was convicted of second degree murder and false imprisonment, contends that the court made numerous erroneous rulings relating to the rejection of requested instructions, the use of prior arrest reports, and various sentencing errors. Since we conclude that the court improperly refused to give an involuntary manslaughter instruction, we reverse the murder conviction and affirm the false imprisonment conviction.

FACTUAL AND PROCEDURAL SYNOPSIS

1. Procedural history

In an information filed on March 20, 1989, appellant was charged in count I with murder in violation of PENAL CODE SECTION 187¹, subdivision (a). It was further alleged that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(1) and that appellant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) [228 Cal.App.3d 1152] and 12022.5, which also caused the offense to become a serious felony pursuant to section 1192.7, subdivision (c)(8). Appellant was charged in count II with kidnapping in violation of section 207, subdivision (a). It was further alleged that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(20) and that appellant personally used a firearm within the meaning of section 1203.06, subdivision (a)(1) and 12022.5, which also caused the offense to become a serious felony within the meaning of section 1192.7, subdivision (c)(8).

A jury found appellant guilty as charged in count I and found the murder to be of the second degree. The jury also found the allegation that appellant personally used a firearm to be true. On count II, the jury found appellant guilty of the lesser included offense of false imprisonment by force, menace or duress in violation of section 236. The jury also found to be true the allegation that appellant personally used a firearm.

Appellant was sentenced to 15 years to life on count I, plus two years consecutively on the section 12022.5 enhancement. Imposed consecutively on count II, was the upper term of three years, plus two years on the section 12022.5 enhancement. The abstract of judgment states that the sentence on count II is consecutive to the sentence on count I.

Appellant's motion for a new trial was denied, and appellant filed a timely notice of appeal.

We granted respondent's petition for rehearing.

2. Factual history

A. Prosecution case

Franklin Bass, who was in the navy and stationed in Long Beach, shared an apartment with Dawn Reeves when he was not on board ship. On the evening of January 14, 1989, Franklin, Dawn and Tim Clark attended a birthday party for the children of Dawn's friends and returned to their Ontario apartment at 11:00 p.m. Later that evening, Skip Reeves (Dawn's brother) and appellant stopped by to visit.

Bass knew Skip, but had never met appellant before. When Skip and appellant entered the apartment, the others were watching television and talking. Bass had just gotten a beer from the refrigerator. Skip introduced appellant. All five participated in a general conversation. Appellant sat in the corner, but did not do anything unusual. When Bass asked appellant if he wanted a drink, appellant said he did not want alcohol because it tasted like shit.

After an hour or so, Bass became tired and went to sleep on the bed in the studio apartment. Everyone was acting calmly. Bass had consumed three beers and a portion of another beer during the course of the evening.

Bass woke up because he heard Dawn screaming from the bathroom. She said: " 'Frank, what's going on out there?' " She was yelling at Tim and appellant to find out what was going on.

Bass rose up and saw appellant on top of Tim, who was laying on the other bed. Appellant had his left hand around Tim's throat and a .38 caliber revolver to Tim's head. Appellant was threatening Tim. Bass was about four feet away from Tim and appellant. During the scuffle, appellant told Tim that he would come back for Tim. Appellant said: " 'There's bats, knives, guns; your choice, but I'm coming to get you.' "

Bass raised his hands up, trying to avoid any threatening gestures, and walked toward appellant. Appellant pulled the gun away from Tim's head and told Tim to keep his mouth shut.

Dawn came out and began yelling at Tim. Tim became angry and began yelling at appellant. Tim told Dawn that appellant had threatened him with a gun and had threatened to kill him. Dawn did not seem to believe Tim.

Appellant was sitting on the couch, glaring at Tim and making gestures as if to say "come on." The gun was in appellant's jacket at this time.

Tim wanted to confront appellant, but Dawn insisted on trying to find out what had happened. Dawn pushed Tim to the kitchen while appellant stared at Tim. Bass went towards appellant, trying to keep appellant away, making sure appellant did not reach into his pocket again. Dawn asked Bass to get appellant out of there because Tim was mad.

Bass told appellant to leave. Appellant stood up, and Bass stood between Dawn and appellant. Bass used his raised hands and chest. Bass said, " 'I am not armed. I am not trying anything but you have to leave.' " When the two men went outside, Bass locked and shut the door behind him. Bass then thought, " 'Wow, you're outside now. This man has a gun. What are you going to do?' "

Bass turned around and saw that appellant was pointing the gun directly at him. Bass raised his hands and said, " 'I've got my car keys. I'll take you any where [sic] you want to go, but I can't let you come back into the apartment.' " Appellant pointed the gun at Bass, and Bass heard the distinct clicking sound of the hammer going back. Appellant ordered Bass to drive, and the two walked to the car. Appellant was behind Bass, pulling the hammer back and then releasing it, causing a clicking sound.

Appellant spoke of going back to the apartment, and Bass told appellant that appellant could not do so. Bass, who was scared, kept thinking, " 'What am I doing. I've got to get out of this. That gun could go off while he's doing that.' " Bass unlocked the passenger's and driver's doors. Bass got in the driver's seat, and appellant got in the passenger seat.

As Bass drove, appellant told Bass to turn left or right, which Bass did. Appellant ordered Bass to run red lights at different times, and ordered Bass to drive faster at other times. During this time, appellant was pointing the gun at Bass.

Bass noticed the gun was being held across appellant's chest and appellant was rocking back and forth. Bass was busy driving his car, which had a manual transmission. Appellant was making remarks about capping off a few rounds and shooting somebody.

As Bass was driving, he saw that two sheriff's cars had pulled someone over on the right shoulder of Mission Boulevard. Bass decided to drive up behind the sheriff's vehicles, get out of the car, raise his hands and tell the deputies that appellant had a gun. Bass began to slow up and move from the left hand lane to the right hand lane, when appellant said, " 'Good idea. I am going to get some pigs. I am going to cap off a few rounds.' " With that, appellant stuck the gun out of the passenger side window.

Bass speeded up and moved the car away from the cops; Bass speeded up to 90 from 60 miles per hours in a 45 mile zone. Appellant screamed, " 'You made me miss' " and cussed at Bass.

As they entered Pomona, westbound on Mission, Bass saw a black Mustang traveling in the same direction. The Mustang was in the lane nearest the curb, while Bass was in the lane nearer the center. The driver of the Mustang was looking straight ahead and had his hands on the wheel. There was no contact between the two cars.

Both cars stopped at a light. Bass got away from the light first, but appellant told Bass to slow down. Appellant kept telling Bass to slow down, then to speed up, always staying a little ahead or behind the black Mustang. Appellant said, " 'Look, they got a shotgun. They're going to shoot at us.' " Bass looked over to see the driver of the black Mustang just driving with his hands on his wheel and looking straight ahead. Bass did not see a shotgun. The driver's window of the Mustang was rolled up.

Appellant kept saying that they would shoot us, that they're from out of town. Appellant said, " 'You're going to see what happens when people been a Dick to me.' " Appellant pulled the gun in and out of the window and then stuck it out the window. Bass heard shots and broken glass. Bass counted five rapid shots; appellant's gun held six bullets. Bass saw that the black Mustang was half a car length ahead and appellant's arm was out of the window with the gun pointed at the Mustang.

Bass never saw a window rolled down on the black Mustang or any kind of weapon in that car. Bass never saw the driver of the Mustang looking in their direction or witnessed any contact whatsoever with the Mustang.

Officer Thomas C. Marchetti of the Los Angeles Police Department had been heading home with his friend Dean Zacharis in a black Mustang on Mission. Zacharis was driving the Mustang, and Marchetti was the passenger. Marchetti heard gunfire, and the driver's side window of the Mustang came crashing in and hit Marchetti in the face. Marchetti went down, and when he came up, he saw Dean's head lying in his...