Brief Bank # B-758 (Re: F 8.51a [Murder And Manslaughter Distinguished:
Application Of Manslaughter To Dangerous Acts Whether Lawful Or Unlawful].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) Appeal #AO00000
)
v. ) Alameda County
) Superior Court
JOHN DOE, ) No. H00000
)
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF ALAMEDA
Honorable Joseph Hurley, Presiding
Excerpt From
APPELLANT’S OPENING BRIEF
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95518-4956
Telephone: (707) 822-5776
Attorney for Appellant
By Appointment of the Court of
Appeal under the First
District Appellate Project’s
Independent case System
II.
THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO GIVE PARAGRAPH TWO OF CALJIC No. 8.51.
A. Relevant Procedural history
While testifying on direct and cross-examination, appellant repeatedly indicated he did not intend to kill decedent. On direct examination, he averred that when he came out of the bedroom with his gun, he did not intend to shoot decedent, but rather to deter decedent from attacking him with the bat. (RT 936-938.) He further testified that when decedent began to take a second swing at him with the bat, he raised his gun and fired because “at that point I saw no option. You know, he was going to hit me with the bat if I didn’t.” (RT 943-944.) This colloquy ensued:
Q: All right. And did he begin to swing?
A: He started to swing as I was firing.
Q: All right. And what happened at that point in time. [Par.] Do you know how many shots you fired?
A: I thought I fired three.
Q: All right. And what were you trying to do at that time?
A: To stop him from hitting me with the bat.
Q: All right. Were you trying to kill him?
A: No.
Q: Did you know when you fired those shots if you hit him?
A: Not till afterward. (RT 944, emph. added.)
On cross-examination, the prosecutor tried with a conspicuous lack of success to get appellant to say he intended to kill decedent. At the beginning of cross-examination, the prosecutor initiated this colloquy:
Q: Sir, do you acknowledge that you shot and killed Mr. H?
A: Yes.
Q: And you, and that when you did that you did it intentionally?
A: No.
Q: You didn’t mean to shoot him?
A: I didn’t mean to kill him.
Q: When you shot him you did that intentionally, didn’t you?
A: Yes.
Q: And you did mean to kill him, didn’t you?
A: No.
Q: You were in fear for your life, weren’t you?
A: Yes, I was.
Q: You thought he was going to crush your skull in, didn’t you?
A: Yes.
Q: And yet you’re indicating to this jury that you did not intend to kill him?
A: No.
Q: You aimed the gun at him, didn’t you?
A: Yes.
Q: You pointed basically right at his heart?
A: Chest and abdomen area.
Q: Well, you know the chest contains the heart, right?
A: Yes.
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Q: And as you pointed the gun at this man knowing it was loaded, knowing that a bullet would come out, you pulled the trigger, didn’t you?
A: Yes.
Q: And you did that intentionally, right?
A: Yes.
Q: And you did that again and again three or four times, right?
A: Yes.
Q: The fact of the matter is when you did that again and again you meant for Mr. H to die?
A: No.
(RT 962-963, emphases added.)
On further cross-examination, appellant averred that when decedent fell to the floor, he thought his shots had struck decedent, but was not sure because he saw no blood. (RT 966-967.) Later in his testimony, appellant reiterated that he retrieved the gun for protection, figuring that if decedent saw it, he would stop wielding the less-dangerous bat that was in his hands. (RT 1074.) Appellant acknowledged that after getting the gun, he made a decision to go back to the living room, where decedent and his bat were. (RT 1067-1077.)
