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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Don Louis CEBALLOS, Defendant and Appellant.

Cr. 10161.

Decided: June 12, 1973

Harold J. Truett, Public Defender, Buford L. Toney, Deputy Public Defender, San Rafael, for appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Derald E. Granberg, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

Defendant Don Louis Ceballos appeals from a judgment of conviction, based on a jury verdict, of assault with a deadly weapon in violation of Penal Code section 245.

The relevant facts are substantially undisputed.

Ceballos lived alone in a home in a wooded area some distance from other buildings. Its regular living quarters were above the basement with which there was no interconnecting stairway. However, Ceballos sometimes slept in the basement where there were living quarters and a bed, and for a time ending about a month before the incident giving rise to the charges against him, he allowed another person to sleep there. The basement contained tools and other property valued at about $2,000. Upstairs Ceballos had some valuable amplifiers. Around March 15, 1970, the basement had been broken into and tools worth $350 had been stolen. On the following May 12, returning home from work, Ceballos found that the lock of the basement door had been tampered with and badly twisted. The next day he mounted a loaded .22 caliber target pistol with strings, wires, or other attachments in such a way that when the basement door was pulled open about eight inches, the gun would fire in that direction. The contraption was so arranged that Ceballos himself, by opening the door just two or three inches, could disconnect the line which would otherwise pull the gun's trigger. Such a device is commonly known as a spring gun, or trap gun.

The damage to the lock of the basement door was done by one Stephen, aged 16 1/2, and a companion of about the same age. Three days after their visit the boys decided to return. This time they were able to remove the lock. As he pulled the door outward Stephen was hit by a bullet from the spring gun.

The bullet caused a ‘small puncture wound’ on Stephen's left upper cheek opposite the nostril and above the lip. Soon afterward at an emergency hospital he was able to explain to a doctor that he and a friend, needing tools to work on a motorcycle, broke a padlock on an acquaintance's garage, and that when he opened the door he was struck by the bullet. The bullet was removed from the area of the roof of his mouth.

Stephen gave the following uncontradicted testimony at the trial. He admitted that his explanation of the incident to the doctor was false. He stated that the had been told by his young accomplice that there were amplifiers somewhere in Ceballos' house. He had a debt to pay and his ‘way of paying that debt would be to take Mr. Ceballos' property and sell it . . . and get some cash for it.’ He had secured a crowbar from his companion for the purpose of gaining the necessary entry. The two boys attempted unsuccessfully to enter Ceballos' property on May 12. Three days later they returned with the crowbar. On that day the first thing he did when they ‘went to the Ceballos' house . . . was to [try to] locate the amplifiers.’ He first tried to ‘locate the amplifiers inside the upstairs.’ The upstairs door was locked and he could not see the amplifers through the window. He and his companion then went to the basement door at the rear of the property. His friend having difficulty, Stephen took over the ask of breaking the lock. He said, ‘I think I finally broke the lock and the lock flew off and hit [his companion] in the head’ and ‘that's when I grabbed for the handle and twisted the handle and opened the door and that's when the shot went off.’ And he answered certain questions in this manner:

‘Q. Were you intending to go inside the garage?

‘A. Yeah.

‘Q. Why were you going into the garage?

‘A. Because I had a debt to pay.

‘Q. What is that—what is this debt?

‘A. It was a hundred dollars I owed a friend of mine for buying some musical equipment that I have.’

Stephen's accomplice in the offense fully corroborated his testimony.

Ceballos' home was not actually entered, the spring gun having fired as Stephen was pulling the basement door outward.

But the evidence conclusively, and as a matter of law, established an attempted burglary of the premises.

‘Every person who enters any house . . . or other building . . . with intent to commit grand or petit larceny . . . is guilty of burglary.’ (Pen.Code, § 459.) To constitute an attempt, there must be (a) the specific intent to commit the particular crime, and (b) a direct ineffectual act done toward its commission. (1 Witkin, Cal.Crimes, § 93, p. 90.) An attempted burglary is a felony. (See Pen.Code, §§ 17, 461, 664.)

No factual jury issue whether the offense was an attempted burglary resulted from Stephen's additional testimony that he intended ‘to look around,’ and ‘I don't know if I would have actually stolen, is what I am saying.’ He had made it abundantly clear that he intended to steal Ceballos' amplifiers if he found them in the basement. An entry otherwise constituting a burglary is nonetheless a burglary where the intent is to steal specific property which may or may not be within the premises. The same is true where the intent is to steal if something worth stealing is found. In either case, although perhaps qualified, there obviously exists the specific intent to commit theft—and hence, a burglary.

Ceballos' principal contention may be stated as: The jury were improperly instructed as to the amount of force Ceballos was permitted to use in resisting the invasion of his home by Stephen.

Preliminarily, we observe that the mere installation of a spring gun may not of itself be deemed an assault, for an essential ingredient of that crime, the ‘present ability, to commit a violent injury’ upon the victim, is missing at that point. (See Pen.Code, § 240; People v. Corson, 221 Cal.App.2d 579, 581, 34 Cal.Rptr. 584; People v. McCollum, 26 Cal.App.2d 89, 96, 78 P.2d 1030.)

In its jury instructions the trial court correctly defined the crime of which Ceballos was charged in this manner:

‘An assault with a deadly weapon is an unlawful attempt coupled with a present ability with the general intent to wilfully commit an act, the direct natural probable consequences of which, if successfully completed, would be the injury to another, with a deadly weapon.’ (See Pen.Code, § 245.)

The completed act of Ceballos, if done unlawfully, would seem to constitute such an assault with a deadly weapon. His argument is that the force used was legally permissible in the prevention of burglary, ‘a dangerous felony,’ and that there was accordingly, in the language of the statute, no ‘unlawful attempt’ and therefore no assault.

The issue posed deals with the liability of one who sets, and injures another with, a spring gun. While the question appears to be one of first impression in California, elsewhere the rule is generally settled. We review some of the authorities.

American Jurisprudence, Second, states: ‘In accordance with the great weight of authority, one who sets a spring gun or trap does so at his peril. If it is set in a dwelling house and prevents the entrance of a felony, the justification may be sufficient to acquit the owner. If, on the other hand, it inflicts death or great bodily harm on an innocent person, or one who is a mere trespasser, the one who sets the trap must suffer the consequences. He is presumed to intend the natural and probable results of his voluntary act. It becomes as much of an assault on another as if he were personally present and pulled the trigger.’ (6 Am.Jur.2d, Assault and Battery, § 89, p. 78, and see authority there cited.)

Reviewing extensive authority, American Law reports, Annotated, in a comprehensive annotation entitled, ‘Use of set gun, trap, or similar device on defendant's own property,’ succinctly states the pertinent rule as follows:

‘One who sets a spring gun, trap, or similar device upon his property acts at his peril, and in the criminal cases arising out of the use of such devices, as well as in the civil cases, the rule is generally recognized that an owner or occupant of land who sets a spring gun thereon is responsible for injury or death inflicted by such device to the same extent as if he had been personally present and had inflicted the injury with his own hands.’ (44 A.L.R.2d Anno., 383, § 10, p. 398.)

Corpus Juris Secundum announces the same rule as it relates to homicides in this manner:

‘A person is not justified or excused in placing spring guns or other like instruments of destruction for the protection of his property where he would not be justified in taking life with his own hands for its protection or for the protection of his life or person, as in the case of mere trespass, or a minor crime such as petit larceny . . .. On the other hand, where he would have a right to slay another who is endeavoring by force and violence to commit a felony on the property, a killing committed by means of such instrument would likewise be justifiable.’ (40 C.J.S. Homicide § 111, pp. 978–979; and see authority there cited.)

These widely accepted rules would seem reasonably to apply in California but for the possible effect of a related statute, Fish and Game Code section 2007, a misdemeanor, which provides:

‘It is unlawful to set, cause to be set, or placed any trap gun.

‘A ‘trap gun’ is a firearm loaded with other than blank cartridges and connected with a string or other contrivance contact with which will cause the firearm to be discharged.'

This statute went unnoticed in the superior court proceedings. But it nevertheless bears closely on the issues presented on this appeal.

Section 2007, by its terms makes it unlawful to set a spring gun or trap gun. It would seem to follow that, contrary to the general rule, if one ‘endeavoring by force and violence to commit a felony’ on another's habitation were hit by such a contrivance the householder himself would also have committed a felony. For if the invader were but injured, the injury would have resulted from ‘an unlawful attempt, coupled with a present ability, to commit a violent injury’ with a deadly weapon; and hence an ‘assault with a deadly weapon.’ (Emphasis added; see Pen.Code, §§ 240, 245.) If killed, his death would have resulted from the commission ‘of an unlawful act,’ a misdemeanor, and the householder would have committed the crime of manslaughter. (Emphasis added; see Pen.Code, § 192, subd. 2.)

Originating in our early common law is the principle that one, defending his habitation against burglary or other felony of violence or surprise, may use all necessary force, even deadly force. (See People v. Flanagan, 60 Cal. 2, 3–4; Roads v. Superior Court, 275 Cal.App.2d 593, 601, 80 Cal.Rptr. 169; People v. Jones, 191 Cal.App.2d 478, 481, 12 Cal.Rptr. 777; People v. Corlett, 67 Cal.App.2d 33, 52–53, 153 P.2d 595; Nakashima v. Takase, 8 Cal.App.2d 35, 38–39, 46 P.2d 1020; People v. Hubbard, 64 Cal.App. 27, 35, 220 P. 315; People v. Slater, 60 Cal.App.2d 358, 367, 140 P.2d 846; People v. Turpin, 10 Cal.App. 526, 533, 102 P. 680; Pen.Code, § 197, subd. 2; 40 Am.Jur.2d, Homicide, §§ 122, 174–179, pp. 413–414, 459–464; 32 A.L.R. 1541; 25 A.L.R. 508; 25 Cal.Jur.2d, Homicide, §§ 261–263, pp. 794–797; CALJIC Nos. 5.42, 5.43.)

Whether the amount of force used in repelling such an invasion was reasonably necessary, is a question of fact for the jury. (Fawkes v. Reynolds, 190 Cal. 204, 212–213, 211 P. 449; Boyer v. Waples, 206 Cal.App.2d 725, 730, 24 Cal.Rptr. 192; People v. Hubbard, supra, 64 Cal.App. 27, 35, 220 P. 315.)

The immediate issue narrows to the question whether the Legislature, in enacting Fish and Game Code section 2007, intended to impair the broad right of a householder to protect the integrity of his home by means which are necessary, and otherwise legally permissible.

Statutes are not presumed to modify the common law except to the extent that they expressly so provide. (Saala v. McFarland, 63 Cal.2d 124, 130, 45 Cal.Rptr. 144, 403 P.2d 400; Gustin v. Williams, 255 Cal.App.2d Supp., 929, 932–933, 62 Cal.Rptr. 838; Morris v. Oney, 217 Cal.App.2d 864, 870, 32 Cal.Rptr. 88; Gray v. Sutherland, 124 Cal.App.2d 280, 290, 268 P.2d 754.)

In our construction of Fish and Game Code section 2007 it is the intention of the Legislature which must be pursued. (Code Civ.Proc., § 1859; County of Los Angeles v. Frisbie, 19 Cal.2d 634, 639, 122 P.2d 526.) But the “‘manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of”’ the words used. (In re Haines, 195 Cal. 605, 613, 234 P. 883, 889; and see County of Los Angeles v. Frisbie, supra, 19 Cal.2d p. 639, 122 P.2d 526.) “[R]egard is to be had not so much to the exact phraseology in which the intent has been expressed as to the general tenor and scope of the entire [legislative] scheme . . ..” (In re Morgan, 244 Cal.App.2d 903, 910, 53 Cal.Rptr. 642, 647; California Comp. Ins. Co. v. Ind. Acc. Comm., 128 Cal.App.2d 797, 806, 276 P.2d 148, 277 P.2d 442; In re Sing, 14 Cal.App. 512, 513, 112 P. 582.) And the purpose sought to be achieved has an important place in ascertaining the legislative intent. (Freedland v. Greco, 45 Cal.2d 462, 467, 289 P.2d 463; Lowman v. Stafford, 226 Cal.App.2d 31, 38, 37 Cal.Rptr. 681.)

Turning to the instantly considered statute we find it embodied in the Fish and Game Code, a compilation of statutes relating generally to the management of California's wild life. A clear legislative purpose is shown that section 2007 shall proscribe the taking of game animals by instruments such as spring guns. Not so clear is an additional purpose to outlaw such devices, contrary to the common law, in the homes of the people of this state, an area entirely unrelated to the obvious purposes of the Fish and Game Code. And in any event an uncertainty appears whether such was the legislative intent.

The Fish and Game Code, where the context so requires (see § 3), permits consideration of its division and chapter headings in determining the intent of its provisions (see § 4). This is consistent with the general rule that such headings may be used in resolving a statute's ambiguity. (See People v. Nichols, 3 Cal.3d 150, 158–159, 89 Cal.Rptr. 721, 474 P.2d 673 [cert. den. 402 U.S. 910, 91 S.Ct. 1388, 28 L.Ed.2d 652]; In re Bandmann, 51 Cal.2d 388, 392, 333 P.2d 339; Adoption of Sewall, 242 Cal.App.2d 208, 224, 51 Cal.Rptr. 682; Aebli v. Board of Education, 62 Cal.App.2d 706, 738, 145 P.2d 601; but see Paris v. County of Santa Clara, 270 Cal.App.2d 691, 699–700, 76 Cal.Rptr. 66.)

Since the enactment of California's present Fish and Game Code in 1957, section 2007 has been found in chapter 1 of division 3 of that code. Division 3 is entitled ‘Fish and Game Generally.’ Chapter 1 is headed ‘Taking and Possessing in General.’ This strengthens the probability that the statute was not intended to extend to the area here concerned.

Further, we note the firm rule that where a criminal statute is ambiguous, the ambiguity will ordinarily be resolved against the state. (People v. Baker, 69 Cal.2d 44, 46, 69 Cal.Rptr. 595, 442 P.2d 675; In re Murdock, 68 Cal.2d 313, 317, 66 Cal.Rptr. 380, 437 P.2d 764; People v. Alotis, 60 Cal.2d 698, 708, 36 Cal.Rptr. 443, 388 P.2d 675; In re Zerbe, 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182; People v. Smith, 44 Cal.2d 77, 79, 279 P.2d 33; People v. Valentine, 28 Cal.2d 121, 143, 169 P.2d 1; People v. Ralph, 24 Cal.2d 575, 581, 150 P.2d 401.)

For these reasons we conclude, and hold, that Fish and Game Code section 2007 was inapposite to the charge lodged against Ceballos in the superior court.

We turn now to a consideration of the contention that the trial court's jury instructions were prejudicially erroneous.

We observe that the court recognized and applied the general rule we have pointed out, stating to the jury:

‘As a general rule, one has the right to set a trap or machine to protect his person or property from a violent felony, provided the probable consequences of setting such trap is no more than he would have the right to do in person if he were present at the time of the attempt to commit said felony.’

The court, however, went on to relate that while the degree of force used by Ceballos might under certain circumstances be justified ‘in defense of habitation, or person,’ or to prevent the burglary of one's dwelling house, under no circumstances could it be used to ‘prevent a mere trespass or theft of property,’ or to protect ‘goods or personal property from possible theft.’

As we have pointed out, the evidence as a matter of law established that Stephen and his accomplice were engaged in an attempted burglary. There was no evidence in support of a theory that the boys' offense was a ‘mere trespass,’ or no more than an attempted ‘theft of goods or property.’ Nevertheless, the jury were permitted by the court's instructions to adopt such an unsupported theory, under which they were told Ceballos was necessarily guilty as charged.

It is a strict rule of our law, particularly applicable to criminal prosecutions, that: ‘An instruction which finds no support in the record, even though a correct statement of an abstract proposition of law, is improper when it finds no support in the evidence, and it is ground for reversal if it is calculated to mislead the jury . . ..’ (People v. Moore, 43 Cal.2d 517, 530, 275 P.2d 485, 494; People v. Silver, 16 Cal.2d 714, 723, 108 P.2d 4; see also People v. Moore, 196 Cal.App.2d 91, 102, 16 Cal.Rptr. 294; People v. Rogers, 164 Cal.App.2d 555, 557, 331 P.2d 163.)

It is said in People v. Henderson, 214 Cal.App.2d 290, 295, 29 Cal.Rptr. 297, 300, that: ‘Sections 1093 and 1127 of the Penal Code ‘require that the trial court's charge to the jury must be applicable and confined to the ‘points pertinent to the issue,’ and to such matters of law as may be necessary for the information of the jury. This being so, the charge of the trial court may not, without error, even though correctly stating abstract legal principles, be extended beyond such limitation to the point of covering an assumed issue which finds no support in the evidence, or which the undisputed evidence in the case shows does not exist.' . . .' (See also People v. Savinovich, 59 Cal.App. 240, 244, 210 P. 526.) And, “To give instructions not pertinent to the issues involved tends only to confuse the jury, and, instead of enlightening them, serves to impede the administration of justice. . . .” (People v. Garcia, 174 Cal.App.2d 525, 531, 344 P.2d 855, 859; People v. Geibel, 93 Cal.App.2d 147, 178, 208 P.2d 743.)

The error was compounded by the court's failure to define the term ‘burglary’ which was several times adverted to in the instructions. The word has a technical meaning not too commonly understood. Webster's New International Dictionary (2d ed.) indicates that while the word has a more or less distinct meaning in law, its general acceptance is that of ‘theft, larceny, stealage.’ Words of instructions having a technical meaning peculiar to the law should be defined. (People v. Davis, 48 Cal.2d 241, 250–251, 309 P.2d 1; People v. Escarcega, 273 Cal.App.2d 853, 860, 78 Cal.Rptr. 785 [cert, den. 397 U.S. 975, 90 S.Ct. 1092, 25 L.Ed.2d 269]; People v. Burns, 88 Cal.App.2d 867, 874, 200 P.2d 134.) Under the instructions as given, the jury had no intelligible way of determining whether or not a burglary had been attempted—and therefore no way to determine whether the force used by Ceballos was reasonably permissible.

We are urged by the Attorney General that the trial court should have instructed the jury, and that we should now hold, that Ceballos' use of the spring gun constituted ‘excessive and unreasonable force’ as a matter of law. We decline to so hold.

We observe that Ceballos' basement contained living and sleeping quarters which were frequently used, sometimes by Ceballos and sometimes by a roomer. Asked why he set up the spring gun, Ceballos replied: ‘Why? Because somebody was trying to steal my property, I thought, and I mean it was quite obvious, and I don't want to come home some night and have the thief in there or be sound asleep in the middle—you know, the middle of the night and have the thief come in or have any more of my property stolen. But, basically, to keep the thief out, so$_in case I did come home or in case I was downstairs working, I wouldn't catch him in there or run into him or he wouldn't run into me. . . . Well, if a thief was inside my house stealing me—burglarizing my house, and I came in, usually a thief is pretty desperate . . . sometimes the thief is strung out on dope and is very desperate . . . and he would there—like—they just pick up a weapon, you know, if they don't have one . . . and do the best they can.’

Ceballos further testified that he did not set up the device so as to kill or injure anyone; he simply wanted to discourage burglars from entering his house, and to let ‘it go off and let him know that I meant business.’ With ‘both double doors opening,’ he said, ‘I had no idea where a person would be standing.’ He planned no particular ‘path for the bullet to travel in once it was fired . . . just so it would land in the trees outside.’ He pointed out that if his intent was to kill or injure someone he ‘would have used a shotgun or something.’ We observe that the weapon used was a .22 caliber target pistol, probably the most lightly powered of all firearms. It inflicted a remarkably alight penetration, while at the trial the entry scar was not readily apparent.

We conclude that the jury were improperly instructed on the critical issue of Ceballos' case to his disadvantage and probable prejudice. The judgment must accordingly be reversed.

It becomes unnecessary to consider other contentions of Ceballos.

The judgment is reversed.


MOLINARI, P. J., and SIMS, J., concur.

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Docket No: Cr. 10161.

Decided: June 12, 1973

Court: Court of Appeal, First District, Division 1, California.

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