Caldaralla

Charged with an assault with a deadly weapon with intent to kill, defendant was convicted of an assault with a deadly weapon and sentenced to one year in the county jail. In support of his appeal he claims insufficiency of the evidence, errors in the examination of witnesses, errors in the giving and refusing of instructions to the jury, and misconduct of the prosecutor.

I. Is the Evidence Sufficient?

Defendant claims that he acted in self-defense and that the preponderance of the evidence demonstrates that he acted reasonably in defending himself.

“Lawful resistance to the commission of a public offense may be made ... by the party about to be injured.” (Pen. Code, §692.) “Resistance sufficient to prevent the offense may be made by the party about to be injured: ... 1. To prevent an offense against his person, or his family, or some member thereof ...” (Pen. Code, § 693. See also Pen. Code, § 195, subd. 2, and § 197, subds. 2 and 3.)

John Mahan, the victim, was employed by the defendant as a relief bartender. On June 22, Mahan came to work between 11:30 and 12 o’clock. At about 1:30 or 2 he called defendant, saying he would like to “terminate.” Defendant appeared between 4…