People v. Mercer

Opinion

CARR, J.

In a trial by court, Lawrence Joseph Mercer was convicted of drawing or exhibiting a firearm in a rude, angry, or threatening manner in the immediate presence of a peace officer who was then engaged in the performance of his duties (Pen. Code, § 417, subd. (b)). He was granted probation and appeals, contending the evidence is insufficient to support the conviction.

The facts disclose that at approximately 8 p.m., on August 9, 1979, California Highway Patrol Officer Walter Alexander observed defen

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dant speeding on State Route 20. Officer Alexander followed defendant to the Tarke Brother’s warehouse where defendant was employed as a night watchman. As defendant was exiting his vehicle, the officer approached him and saw he was wearing a small caliber automatic weapon in a holster on his left hip in a “cross-draw” fashion. The butt of the gun was facing the officer and he could see that it did not contain a clip.

Defendant repeatedly walked away from Officer Alexander. At one point, when defendant walked some 50-60 feet distant, the officer radioed for a backup unit. When defendant was returning, Officer Alexander noticed there was now a clip in the gun. He told defendant to stop and asked if the gun was loaded. Defendant, according to the officer’s testimony, “stopped, placed his feet slightly apart, went into a stance as though he may draw the weapon and advised that if I wanted to know, to come and find out.” While in this stance defendant’s right arm was slightly elevated, bent at the elbow, with his hand open, fingers slightly spread and about six to seven inches from his right stomach area. Officer Alexander told defendant to give him the weapon; defendant refused and said that if the officer wanted the weapon he “had to come and take it.” Officer Alexander warned defendant not to draw the weapon and the two stood facing each other, 40-45 feet apart, for about a minute to a minute-and-a-half.

Defendant finally informed the officer that he was a night watchman at the warehouse, that he had some things to do and wanted to go do them. The officer told him that he could do whatever he had to do so long as he remained in sight and returned in a few minutes to sign the citation. Defendant left and went about his chores. In the meantime, the backup unit arrived and defendant was taken into custody.