Simon

Defendant Leo Simon appeals after a jury found him guilty of second degree murder (Pen. Code, §§ 187, 189) 1 and found that he used a firearm in the commission of the murder (§ 12022.5). The issue in this case involves the admissibility of a prior assault committed by Simon directed against a person other than the victim. While potentially admissible to negate Simon’s claim of self-defense, we have determined that the procedures surrounding the court’s determination of its admissibility and the limiting instructions given to the jury were insufficient. Accordingly, we reverse.

Factual and Procedural Background

In the early morning hours of March 10, 1984, Simon shot and killed Phillip Soto at Petrea Saunders’ apartment. He dragged Soto’s body downstairs and placed it near the apartment building’s trash dumpster. He also placed Soto’s pistol and certain other belongings nearby. Shortly thereafter, he phoned the police and reported the shooting. Simon then obtained an attorney and surrendered himself to police.

Simon was charged with murder. At trial, Simon conceded shooting Soto but argued the killing was excusable because he shot Soto in self-defense.

Saunders had…

A necessary predicate to the court’s holding in this case is that evidence of prior unprovoked assaults by the defendant occurring under similar circumstances is admissible to negate a claim of self-defense. We are guided by and rely on valid Supreme Court precedent in support of that proposition (Maj. opn., ante, p. 129) and I am in accord with that reliance. I take the unusual step of writing a separate concurrence to an opinion I have authored for the court (see, e.g., Hawkins v. Superior Court (1978) 22 Cal.3d 584, 595 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ]) in order to highlight what I believe to be an inherent doctrinal tension between the proposition on which we rely and the Supreme Court’s recent decision in People v. Tassell (1984) 36 Cal.3d 77 [ 201 Cal.Rptr. 567 , 679 P.2d 1 ].

The notion that a defendant’s prior assaultive conduct is admissible to negate his claim of self-defense derives principally from the Supreme Court’s decision in People v. Wells (1949) 33 Cal.2d 330 [ 202 P.2d 53 ]. Wells was charged with an assault on a prison guard named Brown. He claimed he was defending himself from an attack by other guards when he accidently injured the victim. (Id., at p.…

Defendant Leo Simon appeals after a jury found him guilty of second degree murder (Pen. Code, §§ 187, 189) [1] and found that he used a firearm in the commission of the murder (§ 12022.5). The issue in this case involves the admissibility of a prior assault committed by Simon directed against a person other than the victim. While potentially admissible to negate Simon's claim of self-defense, we have determined that the procedures surrounding the court's determination of its admissibility and the limiting instructions given to the jury were insufficient. Accordingly, we reverse.

In the early morning hours of March 10, 1984, Simon shot and killed Phillip Soto at Petrea Saunders' apartment. He dragged Soto's body downstairs and placed it near the apartment building's trash dumpster. He also placed Soto's pistol and certain other belongings nearby. Shortly thereafter, he phoned the police and reported the shooting. Simon then obtained an attorney and surrendered himself to police.

Simon was charged with murder. At trial, Simon conceded shooting Soto but argued the killing was excusable because he shot Soto in self-defense.

Saunders had been Simon's girlfriend…