People v. Valenzuela

GRIFFIN, P. J.

A jury convicted defendant of assault with a deadly weapon (.38 caliber revolver) in violation of section 245 Penal Code, and escape from the custody of an officer (violation of Pen. Code, § 4532, subd. (a).)

The testimony shows a police officer (Shinault), while patrolling the streets in a police car, saw defendant lying on the

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ground on the north or sidewalk part of a street in Delano at about 4:25 p.m. He went over to defendant, examined him, and smelled the odor of alcohol on his breath. To him defendant appeared to be unconscious. He shook him twice and awakened him. He arose to a sitting position and the officer told him to stand up. He refused and the officer then helped him to his feet. Each recognized the other because of a fracas in which defendant was involved the night before after which the officer arrested defendant, placed him in a car, but after explanation by the assembled crowd, he released him. Defendant, on the occasion here involved, said: “You let me go last night,

let me go again.”

The officer replied: “No, you had your chance last night.” Defendant had bruises on his face. The officer testified he was of the opinion defendant was under the influence of intoxicating beverages. He moved defendant toward the ear, searched him, opened the door of the car, and told him to enter it. Defendant resisted. After placing defendant in the car, defendant lodged his foot in the door to prevent its closing on three separate occasions. Finally, the officer struck the sole of defendant’s shoe with his flashlight. Defendant kicked open the door and got out. The officer attempted to handcuff him and the defendant began to struggle with him and grabbed a .38-caliber S & W loaded revolver from the holster worn by the officer, broke away from him and stepped about 10 feet back and pointed the gun at the officer (about midsection) and cocked the hammer. Nearby witnesses yelled at defendant and begged him not to shoot the officer. The officer suddenly jumped behind his car and defendant ran away through a nearby yard. A shot was fired and defendant encountered a neighbor and ordered him to convey him to McFarland, a near-by town. Officers were called. They approached this car with guns pointed at defendant’s head, told him he was under arrest, handcuffed him, and then ordered him to step out. Under the seat was found the officer’s revolver. On the way to the police station the officers asked the defendant what had gotten into him and he replied he had been on wine for two or three days; that he did not know why he had taken the officer’s gun, but said the officer was “not fair.”