Roads v. Superior Court In and For Siskiyou County

• Decision Date: 14 August 1969
• Citation: 80 Cal.Rptr. 169,275 Cal.App.2d 593
• Court: California Court of Appeals Court of Appeals
• Parties: Wayne Albert ROADS, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SISKIYOU, Respondent; The PEOPLE of the State of California, Jane Skanderup, District Attorney for the County of Siskiyou, and Thomas C. Lynch, Attorney General of the State of California, Real Parties in Interest. Civ. 12284.

Page 169

80 Cal.Rptr. 169

275 Cal.App.2d 593

Wayne Albert ROADS, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SISKIYOU, Respondent The PEOPLE of the State of California, Jane Skanderup, District Attorney for the County of Siskiyou, and Thomas C. Lynch, Attorney General of the State of California, Real Parties in Interest.

Civ. 12284.

Court of Appeal, Third District, California.

Aug. 14, 1969.

Hearing Denied Oct. 9, 1969.

Rutherford & Rutherford, Napa, for petitioner.

Thomas C. Lynch, by Daniel J. Kremer and Peter G. DeMauro, Sacramento, for real parties in interest.

JANES, Associate Justice.

Petitioner was indicted by the grand jury on charges of murder (Pen.Code, § 187), possession of narcotics (Health & Saf.Code, § 11500), and possession of narcotic paraphernalia (Health & Saf.Code, § 11555). A motion to set aside the indictment on all counts was made pursuant to Penal Code section 995. Petitioner urged the lack of reasonable or probable cause to support the murder charge and illegal search and seizure in regard to the narcotics charges. The superior court denied the section 995 motion and granted a motion severing further proceedings on the homicide charge from those on the narcotics charges.

A petition for writ of prohibition, based on the grounds previously presented in the superior court, was filed April 21, 1969. On April 24, 1969, we issued an order to show cause limited to the murder count. Upon review of the evidence we have concluded that petitioner's contention must be sustained.

At approximately 8:00--8:30 p.m. on March 1, 1969, 16-year-old Johnny Applegate ('Johnny'), younger brother of the victim, Bruce Applegate ('Bruce'), went to petitioner's home at Happy Camp to invite petitioner's roommate, Robert Braddy, age 20, to a party that evening. Johnny was accompanied by Linda Martin. A party was in progress at petitioner's home. Those present were petitioner, Braddy, Lois Darlene Berry ('Darlene'), age 15, Sharon Blacketer ('Sharon'), and Sharon's brother, Charles Blacketer, age 14. When Johnny knocked on the door and asked to be admitted, he was told by those inside to go away, that it was a 'private party.' As he was leaving, Johnny told petitioner to 'shove it.' An altercation between Johnny and petitioner followed. Johnny testified that petitioner struck the first blow, and that his (Johnny's) shirt was torn and his ear and back scratched. Braddy testified that the first physical contact was by Johnny, and that no one was hurt in the fight, although petitioner's ear was scraped. Darlene and Sharon also testified that no one was hurt. Braddy and Darlene contradicted Johnny's statement that his clothing was torn. Johnny testified that he thought petitioner was drunk because '(He) wouldn't do something like that if he was sober.' Sharon was the only witness to the fight who was asked about the sobriety of the participants. She testified that petitioner was sober but that Johnny appeared to be drunk. It is uncontradicted that before he left, Johnny told petitioner that he would be back. Johnny answered, 'yes' when asked by petitioner if he'd be alone.

After Johnny left, petitioner went into his bedroom and loaded a .22 caliber pistol which he left there, telling the others there might be trouble later. He also placed a sign on the door which read 'private party.' Those present ate some pizza and a small quantity of beer was consumed by the guests (except Charlie) as the party continued in the dimly lit house. All those at the party testified that petitioner was not drunk and had not used any drugs that night.

At approximately 11:00 p.m. that night, David Burcell was eating dinner at the Timber Inn Cafe in Happy Camp when Bruce approached him and told him that his brother Johnny had been beaten up by petitioner and asked Burcell if he could show him where petitioner lived. Burcell, Bruce, and a Frank Wood left the cafe and went to petitioner's home. Burcell and Wood testified that Bruce commented on the sign and then knocked on the door several times. There was no response, although the house was dimly lit and music could be heard. Bruce then forced the door with his shoulder and went in. His companions testified that they remained outside. Sharon and Charlie testified that both came in. Darlene testified that only Wood came in. Several seconds later a shot was heard by Wood, and both observed Bruce come out and say, 'I'm shot.' The three men started to run down the street, but Bruce stopped and lay on the sidewalk. Three more shots were heard. Bruce, larger in build than petitioner, was found to be unarmed when examined by Officer Collord.

Those present inside the house (with the exception of petitioner, who did not appear before the grand jury) testified that Bruce forced his way in and moved towards petitioner. Darlene testified that Bruce appeared to be drunk, and that she had previously observed him in a drunken condition. (No other witness was questioned regarding Bruce's condition.) Their testimony in regard to the shooting is without material conflict: Petitioner got his gun from the bedroom and twice told Bruce to get out of his house or he would shoot. Bruce said nothing but kept backing petitioner up. As he either lunged towards or attempted to strike petitioner, the gun was fired (or 'went off'). Bruce then ran out, crying out, 'I'm shot.' Petitioner went to the door and fired three shots to attract a passing policeman.

Several police officers arrived shortly and took petitioner, Braddy, and petitioner's father, who lived nearby, to the police station. Petitioner was advised of his rights at the police station and there was heard to say to his father, 'he (decedent) came through the door and I shot him.'

No testimony was presented as to the cause of death, nor was any medical testimony presented as to the fact of death. Deputy Turner testified, however, that he checked Bruce and could not find any sign of life. Undersheriff Rokes said Bruce was not alive when he saw him at 2:00 a.m., and that a cursory examination of Bruce's body revealed 'A puncture-type gun would in the chest of the subject.' ¹

Petitioner contends that he was indicted without reasonable or probable cause (Pen.Code, § 995) in that the prosecution failed to produce any evidence showing 'malice aforethought' at the grand jury hearing, and that the evidence which was produced established that the killing which occurred was justifiable homicide. (Pen.Code, § 197.) ²

Although the Legislature has lodged exclusively with the grand jury, and not the courts, the duty to determine whether or not an indictment should be returned (Pen.Code, § 939.8), an indictment must be set aside by the court '* * * (when) the defendant has been indicted without reasonable or probable cause.' (Pen.Code, § 995.) "Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused * * * (and) * * * may exist although there may be some room for doubt.' (People v. Nagle (1944) 25 Cal.2d 216, 222, 153 P.2d 344, 347.) Such cause exists 'if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged.' (People v. Mitchell (1946) 27 Cal.2d 678, 681, 166 P.2d 10, 12.)

'An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' (Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 183--184, 281 P.2d 250, 254.) The 'offense' referred to is not merely Any offense, but The offense charged by the indictment. (Rollins v. Superior Court (1963) 223 Cal.App.2d 219, 223, 35 Cal.Rptr. 734; Callan v. Superior Court (1962) 204 Cal.App.2d 652, 662, 22 Cal.Rptr. 508; see also dictum in Jackson v. Superior Court (1965) 62 Cal.2d 521, 528, 42 Cal.Rptr. 838, 399 P.2d 374 (rule equally applicable where uncontradicted evidence of 'included' offenses).) It has been held, therefore, that 'where there is absolutely no competent evidence before the grand jury of the commission by the accused of The crime charged (italics added) (Greenberg v. Superior Court (1942) 19 Cal.2d 319, 322, 121 P.2d 713) or * * * where there is a total absence of evidence supporting A necessary element of the crime charged, the indictment will be held invalid upon proceedings for a writ of prohibition. (Citations.)' (Italics added.) (Callan v. Superior Court, supra, 204 Cal.App.2d, p. 662, 22 Cal.Rptr., p. 514.)

On the question whether malice aforethought, an essential element of the crime of murder, is lacking in the evidence presented to the grand jury and now before us, both parties rely heavily on Jackson v. Superior Court, supra, 62 Cal.2d 521, 42 Cal.Rptr. 838, 399 P.2d 374. In Jackson a similar contention was presented, but the evidence there before the grand jury which supported petitioner's theory of provocation and/or self-defense was found to be '* * * neither uncontradicted nor susceptible of only one interpretation.' (P. 528, 42 Cal.Rptr. p. 843, 399 P.2d p. 379.) In rejecting petitioner's contention and denying prohibition the court stated, at pages 525 to 527, 42 Cal.Rptr. at pages 841--842, 399 P.2d at pages 377--378:

'From the foregoing evidence the grand jury could reasonably entertain, as men of ordinary caution and prudence, a strong suspicion that petitioner shot and killed Harry Cole on the night in question. Indeed, petitioner apparently concedes this to be the fact, but argues that an indictment for murder nevertheless cannot stand because 'There was no evidence before the grand jury that the homicide was committed with malice aforethought.' By statutory definition (Pen.Code, § 187) such malice 'is made an essential element of the crime of murder whether it be of the first degree or of...