Kelley

Defendant Wayne Edward Kelley was convicted upon a jury’s verdicts of second degree murder (count 1), and of possession of a concealable firearm while having previously been convicted of a felony in violation of Penal Code section 12021 (count 2). He appeals from the judgment of conviction.

We consider first the appeal as it relates to the second degree murder conviction.

Prosecution witnesses had testified at Kelley’s trial, as reasonably condensed by the People’s appellate brief, in this manner: “Shortly before noon on April 12, 1978, appellant took a cab to the intersection of *1008 Sacramento and Prince Streets in Berkeley.... He was carrying a handgun he had acquired two or three weeks earlier in exchange for two bags of heroin, and he intended to trade the gun back in for more narcotics. Appellant knew the gun was loaded.... [II] Huían Terry Stewart, who knew both appellant and the victim, John Lewis Agnew, was standing in front of Franklin Liquor Store about 11:30 a.m. on April 12, 1978....Agnew was picking his nails with a Boy Scout type knife, with a curved 3 or 3Vi inch blade....Appellant was standing on the corner.... Stewart saw Agnew walk toward appellant…

Making standard homicide instructions more intelligible to the jury is a worthy goal, and one I share with our dissenting colleague. To pursue that goal through extemporaneous remarks to the jury, however, is a risky venture even, as this case demonstrates, for an exceptionally able and experienced jurist.

*1016 In concluding that the error was harmless our dissenting colleague focuses entirely upon the prosecution’s evidence, and ignores the defendant’s evidence which, of course, the jury may have believed.

According to defense witnesses, the defendant was being assaulted by a man with a knife who called him a “nigger” and threatened to kill him. To say that these circumstances could provide no “rational basis” for a finding that the defendant shot Agnew in a heat of passion (cf. People v. Valentine (1946) 28 Cal.2d 121 [ 169 P.2d 1 ]) or on the basis of an unreasonable belief in the necessity of self-defense, and thus without the “malice” requisite to the crime of murder (cf. People v. Flannel (1979) 25 Cal.3d 668 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ]), imports a standard of “rationality” which injects the court far more deeply into the thought processes of the jury than in my…

I dissent.

This is, of course, not the first time that Judge Golde’s improvised homicide instructions have been challenged on appeal, * nor the first time that I have disagreed with my respected colleagues concerning, not necessarily the correctness of the questioned instructions in the context *1017 of a murder trial, but their impact on the thought-process of the jury under the precise circumstances of a given case.

After shooting Lewis twice and watching him fall helpless, face down on the ground, appellant calmly walked over, stood over him and fired three more rounds into the back of his head. On what rational basis could so deliberate and brutal an act have been viewed as manslaughter? Surely the use of a vulgar racial epithet by one black man to another in an East Bay ghetto area, or the very generalized “threat” directed at appellant by the victim, who then walked away from appellant, provide no such basis. I am mindful, too, that after the initial two shots were fired half a minute elapsed before appellant fired the second burst of shells into his victim’s inert body.

Judge Golde’s statement that “A kills B. If that is all you know— second degree murder,” and related…

ELKINGTON, Acting P.J.

Defendant Wayne Edward Kelley was convicted upon a jury's verdicts of second degree murder (count 1), and of possession of a concealable firearm while having previously been convicted of a felony in violation of Penal Code section 12021 (count 2). He appeals from the judgment of conviction.

We consider first the appeal as it relates to the second degree murder conviction.

Prosecution witnesses had testified at Kelley's trial, as reasonably condensed by the People's appellate brief, in this manner: "Shortly before noon on April 12, 1978, appellant took a cab to the intersection of Sacramento and Prince Streets in Berkeley.... He was carrying a handgun he had acquired two or three weeks earlier in exchange for two bags of heroin, and he intended to trade the gun back in for more narcotics. Appellant knew the gun was loaded.... [¶] Hulan Terry Stewart, who knew both appellant and the victim, John Lewis Agnew, was standing in front of Franklin Liquor Store about 11:30 a.m. on April 12, 1978.... Agnew was picking his nails with a Boy Scout type knife, with a curved 3 or 3 1/2 inch blade.... Appellant was standing on the corner.... Stewart saw Agnew…