People v. Garcia

This is an appeal by the People from the granting of the motion by defendant to dismiss, pursuant to Penal Code section 995, a charge of violating section 187 of the Penal Code (murder).

Sylvia testified that King threatened to kill Garcia on several occasions, and King had a gun with him on a few of his subsequent visits to the house. King came to the house almost every day the following month, provoked additional scenes, and used profanity towards Garcia. Sylvia and Garcia were upset and decided to contact the police. Garcia borrowed a rifle.

On June 14, 1967, Sylvia, Garcia, and a friend Burt, went out to breakfast. She and Burt returned to the house at 5 or 5:30 a.m. Burt carried in some groceries and left. King came over to the house, Sylvia tried to call Garcia to tell him that King was there, King became upset and later Garcia came in. King asked Sylvia to call a cab and King left. After King left Sylvia told Garcia that King said he was going home to get his gun and was coming back. Garcia locked the doors and windows, turned off the lights and closed the curtains at about 6 a.m. Garcia told Sylvia to stay on the floor because King knew where the bed was located and he might shoot through the window. Sylvia fell asleep on the floor and was awakened by a rattling noise at the back door which lasted about a minute. It was quiet a few minutes and then she heard a shot. She called Garcia and got no reply. The back door had two chains and a bolt on it. She did not actually see Garcia leave the bedroom but she thought he left at the time of the noise. Sylvia testified that she did not hear too well,

The People also argue that “ ‘When the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder; . . .’ ” (Jackson v. Superior Court (1965) 62 Cal.2d 521 , 525-526 [ 42 Cal.Rptr. 838 , 399 P.2d 374 ].) However, the case before us is not a case where nothing further is shown. There is Garcia’s testimony relating to self-defense, which is corroborated by Sylvia’s testimony. Further, an overnight bag with a gun in it was found by the decedent’s body. There was more than sufficient evidence in the case at bench to overcome the presumption referred to in the Jackson case.

The People also argue that in People v. James (1950) 99 Cal.App.2d 476 [ 222 P.2d 117 ], and Jackson v. Superior Court, supra, 62 Cal.2d 521 , the evidence of provocation or self-defense was insufficient. These cases do not aid the People. Each case must turn on its own facts, and the factual situation in the case before us is dissimilar to the factual situations in the cases cited by the People. In the case before this court defendant was in his own home when the victim, apparently armed with a pistol in an overnight bag, provoked a fight and attempted to break in. There is no evidence to the contrary, and the evidence of self-defense is clear and convincing.

“ Reasonable or probable cause” required to uphold a commitment means a state of facts as would lead a man of ordinary caution to believe and conscientiously entertain a strong suspicion of the guilt of defendant and may exist although there is some room for doubt. (Lorenson v. Superior Court (1950) 35 Cal.2d 49 [ 216 P.2d 859 ]; People v. Brice

The order is affirmed.

Files, P. J., and Jefferson, J., concurred.

A petition for a rehearing was denied September 12, 1968, and appellant’s petition for a hearing by the Supreme Court was denied October 17,1968.