Opinion
Rehearing Denied July 9, 1970.
Opinion on pages 698 to 704 omitted.
HEARING GRANTED
For Opinion on Hearing, see 95 Cal. Rptr. 193, 485 P.2d 257.
Howard Renge, Fowler, for appellant.
Thomas C. Lynch, Atty. Gen., Edsel W. Haws, Deputy Atty. Gen., Sacramento, for respondent.
STONE, Associate Justice.
Appellant was convicted of violation of Penal Code, section 187, attempted murder, violation of Penal Code, section 245, subdivision (a), assault with a deadly weapon, and violation of Penal Code, section 245, subdivision (b), assault with a deadly weapon upon a police officer.
Sharon Finney had been living with appellant in a meretricious relationship for about a year. She met her former husband in a bar and, after spending an evening dancing and talking with him and [87 Cal.Rptr. 421] several friends, seriously considered a reconciliation. She went to her sister's home and during a telephone conversation with appellant, agreed to talk over the situation.
Appellant picked Sharon up in his car and as they drove east on Belmont Avenue, she noticed his behavior change. He started talking louder and louder and eventually pulled a gun from under the arm rest and 'screamed as loud as he could.' Sharon said the gun was 'pointed across my side of the car and he tensed all up and brought it around and it fired out of his side of the window.' She also said that appellant was drinking beer but operated the car in a fairly normal manner, and that the gun was never actually pointed at her. Appellant turned off Belmont onto a dirt road, and parked by a canal. He then lost control of himself, began to shake, and ultimately passed out, whereupon Sharon took the gun and car keys and hitchhiked back to Fresno. Her testimony as to whether appellant threatened her was equivocal, but she was positive that although he cocked the gun twice he never actually pointed it at her.
The incident was reported to the police, and Officer Cunningham was assigned to investigate. Upon receiving word that appellant was in his home, Officer Cunningham, who was not in uniform, went there to arrest him for assault with a deadly weapon. With the help of other officers, a plan was devised for approaching the house. Cunningham went to the front door, rang the bell twice and then pounded loudly on the screen door, announcing that he was a deputy sheriff. Receiving no response, he opened the screen door and knocked on the door, which was locked; he went around to the back door and knocked, but again no one answered. Through an open bedroom window at the rear of the house, he saw a male figure walking back and forth near the doorway of the bedroom. The officer called appellant by name, advised him that he was a deputy there to arrest him for assault with a deadly weapon and that if he did not come out he would force entry. A voice replied, 'You do and I'll blow your ass back out.' Cunningham took out his pocket knife and commenced cutting the window screen; he noticed someone 'scooting' along the bedroom wall toward the window. Appellant pulled the curtain back and pointed a gun toward Officer Cunningham, who immediately stepped back, drew his own weapon, and fired. Almost simultaneously the other gun discharged, and Officer Cunningham was hit in the right side of his chest. The officer testified that in his opinion he fired the first shot.
Appellant has no quarrel with the instructions given concerning the elements of the crime of attempted murder, which included specific intent to commit murder. Rather, he contends that his consumption of drugs and alcohol prior to the shooting of Officer Cunningham so affected his brain and nervous system that he was incapable of forming a specific intent to murder. This issue was presented to the jury as a fact question, under proper instructions within the rationale of People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911. The jury decided the issue of diminished capacity against appellant, and we cannot say the jury was wrong. They had the duty of considering all the evidence pertaining to the shooting of the officer, and from the facts adduced they determined that appellant did have the mental capacity to form an intent to murder the officer. We note, parenthetically, that the trial court properly confined the defense of diminished capacity to the count charging attempted murder and, in accordance with People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, refused to permit that defense to the two counts of assault with a deadly weapon, violations of Penal Code, section 245, subdivisions (a) and (b).
Appellant also argues that quite aside from diminished capacity, there is no evidence to support a finding of specific intent to murder Officer Cunningham. However, there is the testimony of the officer [87 Cal.Rptr. 422] that he rang the front doorbell, knocked on the front door and announced that he was a deputy sheriff, walked to the back door and knocked again, and that through a bedroom window he saw appellant moving about and then suddenly appear at the window with a gun in his hand. The officer had called appellant by name, advised him that he was a deputy sheriff there to arrest him for assault with a deadly weapon, and that entry would be forced if he did not come out. Appellant's answer was a threat to blow the officer back out. The evidence amply supports the finding of the jury that appellant harbored the requisite intent to commit the crime of attempted murder.
Turning to the appeal from conviction of assault with a deadly weapon upon the person of a police officer, violation of Penal Code, section 245, subdivision (b), we note that the charge arises out of the same act as the charge of attempted murder. There was but one assault upon the officer, which culminated in the shooting. It is settled law that a defendant cannot be prosecuted or convicted twice for the same criminal act. (Pen.Code, § 1023; People v. Bechtel, 41 Cal.2d 441, 260 P.2d 31; People v. Greer, 30 Cal.2d 589, 597, 184 P.2d 512; People v. Krupa, 64 Cal.App.2d 592, 149 P.2d 416.) This is not simply a case of double punishment within the ambit of Penal Code, section 654 (Neal v. California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839; Seiterle v. Superior Court, 57 Cal.2d 397, 20 Cal.Rptr. 1, 369 P.2d 697); here, the same act is the basis for both offenses; the assault with the deadly weapon upon the police officer constituted the attempted murder. Since we affirm the conviction of attempted murder, a more serious crime than assault with a deadly weapon upon the person of a peace officer (Pen.Code, § 245, subd. (b)), the conviction on the lesser included offense cannot stand.
Appellant was convicted of a third charge, from which he also appeals, assault with a deadly weapon upon the person of Sharon Finney, violation of Penal Code, section 245, subdivision (a). He first urges there was error within the purview of People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, by the prosecuting attorney's use of prior written extrajudicial statements to refresh the recollection of Sharon, a prosecution witness. Use of the statements came about when Sharon was asked about certain conduct of appellant and replied that she could not remember. The district attorney showed her a transcription of statements she made shortly after appellant was arrested.
To begin with, there is nothing wrong in refreshing a witness's recollection by extrajudicial written memoranda, as appellant seems to suggest. [Evid.Code, § 771; Witkin, Cal.Evidence, p. 1080 et seq.) However, the purpose must be to refresh the witness's present recollection; the prior statement, whether written or oral, cannot itself be used as substantive evidence. The witness must testify from his present recollection based upon his own perception made at the time the event occurred. If his testimony from the stand is not from his own recollection, the extrajudicial statement cannot be substituted, at least not in a criminal case within the rationale of Johnson. The record reflects that Sharon did, in some instances, have her memory jogged upon hearing the prior statements read, but several times she said she could not remember making statements attributed to her. For example, she said:
'If I told them that, I told them that, if they wrote it. Right now, I cannot remember, no.
'Q. Hearing that doesn't refresh your memory?
'A. No, sir. It has been--I have gone over the story so many times, it's just all run together and people have asked me and your office have asked me did he say this, did he say this, did he say that. I swear I'm to the point I couldn't swear right now and be truthful about it, that I remember saying that.' [87 Cal.Rptr. 423]In his argument to the jury, the district attorney made a rather ambiguous reference to the statements as a whole. He said:
'I don't think there is much question that the general tenor of her testimony was one that minimized to a great extent what later questions brought out as having occurred that day. I think that the questions I asked her along the lines of refreshing memory, all of which refreshed her memory as to a particular point involved--or particular statement made, gives us a clear picture when considered with her present demeanor as to what really happened in that automobile that day.'
Perhaps standing alone this reference to the statements was guarded enough to withstand the test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, but we are not required to determine whether the manner in which the statements were used constituted reversible error under Johnson because we conclude the conviction of assault with a deadly weapon against Sharon Finney must be reversed because of erroneous instructions.
The court instructed the jury that assault with a deadly weapon is a general intent crime, in substance that a person who intentionally does that which the law declares to be a crime is acting with criminal intent. Appellant testified, as did Sharon Finney, that he fired the gun out of the lefthand or driver's side of the car while she was sitting on the passenger side; there is no direct evidence that he intended to shoot her, or to shoot toward her. In People v. Marceaux, 3 Cal.App.3d 613, 83 Cal.Rptr. 798, the defendant pointed a loaded and cocked rifle at a person who was blocking a road. There was no direct evidence that the defendant intended to do more than frighten the victim. The reviewing court concluded that the jury should have been instructed that specific intent to implement such potentiality is an element of the crime. As we read Marceaux, the court's reasoning was that in cases where there has been no battery, and the evidence is unclear as to the defendant's intent to commit an assault with a deadly weapon, an instruction delineating specific intent as an element of the crime must be given. The California Supreme Court denied a hearing in Marceaux.
In view of the similarity in the factual circumstances surrounding the alleged assault with a deadly weapon upon Sharon Finney, we conclude that an instruction on specific intent should have been given as to that count.
The judgment of conviction of violation of Penal Code, section 187, attempted murder, is affirmed; the judgment of conviction of violation of Penal Code, section 245, subdivision (a), assault with a deadly weapon, is reversed; the judgment of conviction of violation of Penal Code, section 245, subdivision (b), assault with a deadly weapon upon a police officer, is reversed.
GARGANO, J., concurs.
COAKLEY, Associate Justice (concurring and dissenting).
I concur in the opinion of the majority with respect to the judgment of conviction of violation of Penal Code, section 187, attempted murder, and in the reversal of the judgment of conviction for violation of Penal Code, section 245, subdivision (b), assault with a deadly weapon on a peace officer.
However, I dissent from the majority opinion in its reversal of the judgment of conviction for violation of Penal [87 Cal.Rptr. 424] Code, section 245, subdivision (a), i. e., assault with a deadly weapon upon Sharon Finney. The majority opinion holds that proof of specific intent is an element of the crime of assault with a deadly weapon and that the court erred in failing to so instruct the jury. As pointed out in my recent dissent in People v. Rocha, Cal.App., 86 Cal.Rptr. 837, filed May 21, 1970, I do not believe that specific intent is an element of Penal Code, section 245, and I therefore do not believe that an instruction thereon is required. Accordingly, I would affirm the conviction of assault with a deadly weapon upon Sharon Finney.