McKelvy
People v. McKelvy
Opinion
lead Opinion
Kline, J.
*698 Opinion
George McKelvy appeals from convictions of mayhem (Pen. Code, § 203) and assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The jury found true allegations that appellant personally used a deadly weapon in the commission of both offenses (Pen. Code, §§ 12022, subd. (b), 1192.7, subd. (c)(23)) and found true an allegation that he intentionally inflicted great bodily injury in the commission of the assault. (Pen. Code, § 12022.7.) The court found that appellant had been convicted of a previous serious felony within the meaning of Penal Code sections 667 and 1192.7.
Appellant contends that the trial court committed prejudicial error in failing to instruct on felony assault and battery as lesser included offenses under the mayhem charge; in failing to instruct sua sponte that an honest but unreasonable belief in the need for self-defense negates the malice required for a mayhem conviction; in admitting a statement allegedly obtained in violation of appellant’s Miranda rights; and in eliciting irrelevant evidence concerning an uncharged act of violence by appellant. We affirm.
Statement of Facts
About 6:30 p.m. on January 6, 1986, Brenda Birch ended her…
concurrence Opinion
Smith, J.
I concur in the judgment only.
The law is clear that the obligation of a trial court to instruct sua sponte with regard to defenses arises “only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 716 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ].)
The defendant testified on both direct and cross-examination that he did not strike or hit the victim. He repeatedly stated that the victim “fell into the pool stick.” Further, the defendant at trial disclaimed prior statements to the effect that he had struck the victim. The defendant’s testimony, and his attorney’s argument, emphasized defendant’s theory that the incident was accidental. Additionally, there was an absence of evidence that defendant held an honest but unreasonable belief in the need for self-defense. It would also appear that an act in self-defense, as an explanation of what took place, would be inconsistent with the defendant’s “accidental” theory.
Therefore, the evidence presented and George McKelvy’s defense do not create an…
Opinion
[Opinion certified for partial publication. [*] ]
OPINION
KLINE, P.J.
George McKelvy appeals from convictions of mayhem (Pen. Code, § 203) and assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The jury found true allegations that appellant personally used a deadly weapon in the commission of both offenses (Pen. Code, §§ 12022, subd. (b), 1192.7, subd. (c)(23)) and found true an allegation that he intentionally inflicted great bodily injury in the commission of the assault. (Pen. Code, § 12022.7.) The court found that appellant had been convicted of a previous serious felony within the meaning of Penal Code sections 667 and 1192.7.
Appellant contends that the trial court committed prejudicial error in failing to instruct on felony assault and battery as lesser included offenses under the mayhem charge; in failing to instruct sua sponte that an honest but unreasonable belief in the need for self-defense negates the malice required for a mayhem conviction; in admitting a statement allegedly obtained in violation of appellant's Miranda rights; and in eliciting irrelevant evidence concerning an uncharged act of violence by appellant. We affirm.