Opinion
Rehearing Denied Dec. 26, 1968. Richard S. Bucley, Public Defender of Los Angeles County, Richard W. Erskine, Clive Martin, and James L. McCormick, Deputy Public Defenders, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and a. Barry Capello, Depouty Atty. Gen., for plaintiff and respondent.
FOURT, Associate Justice.
This is an appeal from a judgment of conviction of involuntary manslaughter.
In an information filed in Los Angeles County on January 4, 1967, defendant was charged with murdering Salvador Dominguez on December 6, 1966. Defendant pleaded not guilty and in a jury trial he was found to be guilty of involuntary manslaughter, a lesser but necessarily included offense than that charged in the information.
A resume of some of the facts is as follows: during the late after noon of November 20, 1966, Sam visited his friend Vincent Michel and Mrs. Michel who resided in the same apartment building a Sam. There he sat around talking and drinking with the Michels and Jerry martin until about 9:30 p.m. when Salvador Dominguez, who was a stranger to Sam and the Michels, walked in the open door. Dominguez, who was clad in ragged, wet clothing and wore no shoes, asked for a drink and stayed until he had consumed several glasses of wine. Then he "started to get mean," bragged that he was a professional karate man and started to jump around the room in a pretended karate demonstration. He started calling Michel's wife names such as whore and bitch, and on this account he was told to leave. Ten minutes later he returned to challenge Sam to a fight. Sam chased Dominguez down the hall to a neighboring apartment where Dominguez turned and raised his arm as though to strike. He struck no blow, however, and Sam, who was wearing heavy boot-type work shoes, threw his victim down and stomped on his stomach. Dominguez appeared to have had the wind knocked out of him and rolled over, cursing. Michel and Jerry Martin, who had followed Sam down the hall, grabbed him and returned with him to Michel's apartment, leaving Dominiguez with two Mexican men who apparently occupied an apartment in the building. The next morning when Sam, who was Assistant manager of the apartment building, went up to check that particular apartment he found Dominiguez lying on the bed and there was blood over the bed and floor. Sam called an ambulance and Dominiguez was taken to Central Receiving Hospital. There Dr. Bazilauskas observed that the victim had been bleeding and vomiting and the doctor formed the opinion that Dominguez was suffering a hemorrhage somewhere in his intestinal tract, and sent him to County General Hospital for diagnosis and possible emergency surgery. Dr. Baker of County General Hospital saw Dominguez when he was first admitted and noted that he had received injuries as the result of some vigorous blunt abdominal trauma. He performed what he believed was a successful operation, but Dominguez remained in critical condition and two weeks later he died. An autopsy was performed by Dr. Chapman who noted the surgical repairs which were of a type indicative of injuries such as might have been caused by multiple blows to the abdomen.
Sergeant Melendres, homicide investigator, learned from the coroner's office on December 6, 1966, that there had been a fight in connection with Salvador Dominguez's death. On December 7, 1966, he talked with the manager of the apartment building where Sam lived and requested that Sam contact the officer. Sam called and later visited the police station. Although in the first conversation with the homicide investigator Sam denied hitting or kicking the victim, he returned to the police station on December 8 and was then told that Michel had been interviewed and had said that he, Michel, had seen Sam stomp Dominguez. At that time Sam responded that he did not recall kicking the victim but that he had been drinking heavily and if Michel, who was more sober at the time, said he had done so, he probably had. Sam was arrested by the police later that same day.
Over defendant's objection the prosecution introduced the testimony of two witnesses to show Sam's modus operandi or Appellant, who is an Indian, testified in his own defense and denied that he had kicked either Tubby or June, but said that he had pleaded guilty to June's charges to get away from her. He related the Dominguez episode in terms substantially the same as the previous testimony. He said that when he kicked Dominguez he intended to protect himself rather than seriously to injure or kill Dominguez. He testified that the victim had rolled away, then had started to get up off the floor and that he, Sam, had assumed that Domoniguez was all right. When he, Sam, returned to the apartment the next day he was surprised to find Dominguez lying on the bed with blood on the floor and the mattress, so he called an ambulance. Sam did not see Dominguez again, but two weeks late Sergeant Melendres called to question him, Sam, about the incident. Louisa Vallejo, sister of the victim, testified for the defense that on the Saturday evening prior to the crime alleged she had received a call from Dominguez telling her that some colored boys had beaten him up over by the Coliseum and that he was hurt, couldn't breathe, and needed her help. She refused to go because he, Dominguez, was on the other side of town and she thought he had been drinking and was not injured. The manager and that although he had heard that Sam had been in fights, Sam was neither a vicious person nor a trouble maker.
Appellant now contends that the statement he made to Sergeant Melendres were improperly admitted in evidence; that the court improperly allowed the prosecution to use the prior inconsistent statements of a witness as substantive evidence rather than merely for impeachment purposes; and that the trial court failed to instruct the jury adequately on proximate cause and self-defense. These contentions are without merit.
Appellant first contends that this statements to the police were improperly admitted into evidence. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.) Sergeant Melendres first talked to the manager of the apartment building where Sam had had a fight with the victim. At the officer's request Sam on December 7, 1966, first called and then visited the police station to discuss the matter. The officer was then merely investigating the incident and did not consider Sam a suspect, so he gave no constitutional admonitions. When asked whether he was a witness or a participant, Sam said that he had only witnessed the incident, whereupon the officer requested that he have Michel come in for a talk. In the recent case of People v. Arnold (66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515) relied People v. Butterfield,
People v. GIOVIANNINI,Appellant, who was charged with murder, admitted kicking the victim, but denied that he kicked him more than once and claimed that he acted in self-defense. The prosecution sought to prove that appellant, rather than an intervening cause, was the instrumentality which inflicted multiple injuries People v. Clapp,
Appellant further contends that the testimony of Officer Meraz constituted improper impeachment of Tubby who testified as a prosecution witness, and that even if properly introduced for that purpose the use of such testimony as substantive evidence constitutes reversible error. John Tubby was called by the prosecution to testify to prior criminal acts by Sam. He acknowledged his signature on the police report, but claimed that he did not recall the incident when appellant kicked him because he was drunk at the time and he did not remember reporting the injury. Officer Meraz was then called and allowed to testify, over objection, that on the occasion in question he went to the Tubby residence in answer to a police call and there found Tubby sitting in the back of an ambulance. Tubby, who had been drinking but was not drunk, told the officer that he had been injured by being kicked by several Indians in a group which included appellant. Tubby signed the police report, and the police customarily refuse to allow a witness to sign a report if he is drunk. Tubby knew what had happened and related it in detail to Officer Meraz at the time; he then read and signed a report of the incident. If the testimony of Officer Meraz was admitted only to impeach Tubby's testimony, its use as substantive evidence would concededly constitute error (People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111.) However, 'the erroneous admission of such a statement as substantive evidence does not automatically deprive the defendant of a fair trial, and the conviction wil be reversed only in those cases in which prejudice ensued.' (People v. Johnson, supra, 68 Cal.2d 660,68 Cal.Rptr. 609, 441 P.2d 121.) In the Johnson case the prosecuting witness, wife of a defendant charged with incest, made prior inconsistent statements before the grand jury. These statements, which concerned the crime charged, differed substantially from her testimony during the grial, and it was held that since the defendant had no opportunity to cross-examine her during the grand jury proceedings, the testimony which she then gave was inadmissible at the trial. Under the constitutional test, it could not be said that the error was harmless. (Chapman v. California, 386 U.S. 18,87 S.Ct. 824m 17 L.Ed.2d 705.) In the present case, the jury had already heard the testimony concerning the crime charged, the extent of the victim's injuries, and the episode in which appellant by stomping or kicking injured June Carmona. Officer Meraz's arrest report was introduced and the court ruled it admissible as past recollection recorded (Evid.Code, s1237). Appellant himself utilized the testimony and report of Officer Meraz in his own defense, thus waiving any previous grounds for objection to its admission. If the statements made by appellant to the police officer at the time of the Tubby incident were properly admissible as past recollection recorded, then Tubby's statements made under the same circumstances Finally, appellant contends that the jury was inadequately instructed as to the issues of the proximate cause of death and self-defense. The court instructed the jury concerning proximate cause in the terms of CALJIC 312, but refused certain instructions submitted by appellant's counsel which paraphrased, without citation of authority, the substance of the given instruction. Appellant argues that the instruction given was confusing; indeed, he contends that the entire concept of proximate cause is unclear. However, the instructions as given by the court adequately advised the jury on the issue involving the cause of the victim's death in the present case. The trial court is not required to instruct the jury on questions of law in the terms dictated by the defense or to give additional instructions when the evidence is covered by other acceptable instructions. People v. Woodard, 145 Cal.App.2d 529, 538-539, 302 P.2d 834.)
As to the issue of self-defense, the court refused CALJIC 622 (Right to Stand Ground and To Pursue) on the ground that this instruction relates to 'A person who has been attacked and who is excercising his right of lawful self-defense * * * ' and was inapplicable because there was no evidence that the victim attacked Sam. The court also refused CALJIC 621 (Self-Defense Against Assault) on the ground that the situation was adequately covered by CALJIC 322 which described the law of justifiable homicide in self-defense and which was given. Ç n the present case the victim was not the aggressor. Appellant pursued the victim who taunted appellant by calling him names and summoning him to a fight. It is well established that words alone do not constitute an assault, which requires instead a violence which has begun to be executed. (People v. Yslas, 27 Cal.630, 633; People v. Mueller, 147 Cal.App.2d 233, 239, 305 P.2d 178.) Appellant chased his victim into the hallway and then into a neighboring apartment where the victim, cornered, turned and put up an arm or fist. Even then it appears that Dominguez made no move to strike a blow but that appellant threw him down and stomped or kicked his stomach with full force while wearing heavy work boots. "[W]here a defendant seeks and brings upon himself a difficulty with the deceased, in which he willingly continues until he involves himself in the necessity to kill, the law will not hold him guiltless. The right of self-defense, which justifies a homicide, does not include the right of attack.'
'In other words, when a defendant seeks or induces the quarrel which leads to the necessity for killing his adversary, the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it. Only when he has done so will the law justify him in thereafter standing his ground and killing his antagonist.' (People v. Holt, 25 Cal.2d 59, 66, 153 P.2d 21, 25.) The jury was correctly instructed on the law applicable to the aggressor who used not reasonable force, but force designed to cause great bodily harm. The requested instructions were properly rejected by the court on the ground that one was applicable under the evidence and the other was covered by other instructions. The only possible affirmative defense appellant could have had, under the facts and the evidence, was justifiable homicide, and on that issue the jury was adequately and properly instructed.
The judgment is affirmed.
WOOD, P.J., and LILLIE, J., concur.