People v. Gonzales

Jorge Chavez Gonzales appeals a judgment convicting him of attempted murder (Pen. Code, 1 §§ 187, 664) while personally using a firearm and inflicting great bodily injury (§§ 12022.5, subd. (a), 12022.7). He also was convicted of assault with a firearm (§ 245, subd. (a)(2)) while personally using a firearm and of selling narcotics (Health & Saf. Code, § 11352) while personally armed with a firearm (§ 12022, subd. (c)). Gonzales challenges the jury’s finding he was personally armed when engaging in that transaction. Because there was no evidence he had firearms on his person during the narcotics sale, Gonzales contends it was error for the court to instruct the jurors they could find he was personally armed upon evidence showing only that he had a firearm readily available for use. Gonzales also claims the court erred in refusing to give his requested special instruction tailored to his contention his firing a rifle at police officers as they burst through the front door of his residence was a reasonable reaction because he had been severely beaten and robbed by three white men who had kicked his front door open just three days earlier.

I

On April 30, 1990, a police…

I concur fully in the court’s analysis and conclusion in part II. However, although I concur in the result reached in part III, I find its analysis too narrow for the following reasons.

Unlike the majority’s language implies, I am satisfied the rationale which supports the “once bitten, twice shy” instruction approved in People v. Moore (1954) 43 Cal.2d 517 [ 275 P.2d 485 ] and other decisions cited, applies equally to law abiding persons who react to what appears to be a surprise violent assault under circumstances similar to an earlier one in which they suffered actual or threats of substantial bodily harm. For instance, elderly pensioners who live in fear each month when they cash their Social Security checks, because they have been assaulted and terrorized regularly in their boarding house rooms by unknown persons bursting through their doors. There is no reason to deny such a victim this defense merely for lack of an allegation the perceived attackers were believed to be the specific bandits who had committed previous assaults, rather than another of the roving bands of criminals who prey on elderly targets of opportunity.

However, there is no legal justification or…

Jorge Chavez Gonzales appeals a judgment convicting him of attempted murder (Pen. Code, [1] §§ 187, 664) while personally using a firearm and inflicting great bodily injury (§§ 12022.5, subd. (a), 12022.7). He also was convicted of assault with a firearm (§ 245, subd. (a)(2)) while personally using a firearm and of selling narcotics (Health & Saf. Code, § 11352) while personally armed with a firearm (§ 12022, subd. (c)). Gonzales challenges the jury's finding he was personally armed when engaging in that transaction. Because there was no evidence he had firearms on his person during the narcotics sale, Gonzales contends it was error for the court to instruct the jurors they could find he was personally armed upon evidence showing only that he had a firearm readily available for use. Gonzales also claims the court erred in refusing to give his requested special instruction tailored to his contention his firing a rifle at police officers as they burst through the front door of his residence was a reasonable reaction because he had been severely beaten and robbed by three white men who had kicked his front door open just three days earlier.

On April 30, 1990,…