People v. Welch11/18/1982
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
Crim. No. 41512
1982.CA.40153 ; 187 Cal. Rptr. 511; 137 Cal. App. 3d 834
November 18, 1982
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES ALVIN WELCH, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. A-618281, Madge S. Watai, Judge.
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Cynthia Choy Ong, Deputy State Public Defender, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Paul C. Ament and Susan D. Martnyec, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Feinerman, P. J., with Stephens and Ashby, JJ., concurring.
Feinerman
Defendant, James Alvin Welch, was charged with murder (Pen. Code, § 187) and use of a firearm in the commission of the offense (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). His first jury trial ended in a mistrial. After a second jury trial, he was convicted of voluntary manslaughter (Pen. Code, § 192, subd. 1), a lesser and necessarily included offense of the murder charge. Defendant was also found guilty of the charge of using a firearm in the commission of the offense. He was sentenced to four years in state prison.
Defendant appeals on three grounds: First, he asserts that his plea of once in jeopardy at the beginning of the second trial should have been granted, since no
juror in his first trial had favored his conviction on the murder charge, in effect acquitting him of that charge. Second, he contends that the trial court's refusal to instruct on involuntary manslaughter was prejudicial error. Third, he argues that two of the court's instructions were erroneous because they were not supported by the evidence. These instructions were CALJIC No. 8.20 (1979 rev.) regarding first degree murder and CALJIC No. 5.55, which states that the right of self-defense is not available to one who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.
We hold that defendant was put in jeopardy twice under the holding of Stone v. Superior Court (1982) 31 Cal. 3d 503 [183 Cal. Rptr. 647, 646 P.2d 809], but that the Stone decision is to be applied prospectively and therefore does not apply to defendant whose trial occurred before Stone was decided. We further hold that defendant's request for an instruction on involuntary manslaughter should have been granted, and that failure to give that instruction constituted prejudicial error. For that reason we reverse and remand the case to the trial court with instructions to give defendant a new trial on the voluntary manslaughter charge.
Facts
Defendant and the victim, Willie Burnett (Burnett), were customers of Roy's Rib Inn, a bar and restaurant in Compton, on the evening of May 3, 1980. The defendant walks with a cane and is classified as disabled. His right foot was crushed several years before this incident when a forklift he was driving turned over. As a result of that accident, he developed thrombophlebitis, a condition in wh
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