People v. Vigil

[863]

AGEE, J.

Defendant was found guilty by separate jury verdicts of assault with a deadly weapon (Pen. Code, § 245) and mayhem (Pen. Code, § 203). Based upon the rule against multiple punishment (Pen. Code, § 654) for “one indivisible transaction”

(Neal

v.

State of California,

55 Cal.2d 11, 19-20 [9 Cal.Rptr. 607, 357 P.2d 839]), the trial court sentenced only on the mayhem conviction and granted a new trial as to the assault conviction. Following such sentence (to state prison) defendant appeals. The facts which follow are stated in the light most favorable to the prosecution.

Defendant and Esther were married on February 9, 1947 and divorced on May 29, 1962. On July 4, 1964 Esther was living in Oakland with their three children, the oldest of whom was 16-year-old daughter Laverne. Defendant at that time was employed in Alaska as a butcher.

Defendant was informed over the telephone by his brother and by Laverne that his former wife was associating with another man. This information caused defendant to leave Alaska by plane on the evening of July 3, 1964. He arrived in Oakland the next morning and went by taxi to Esther’s residence, arriving there about 5 a.m. He looked through Esther’s bedroom window and saw her in bed with the victim, one Arnold.

Laverne testified that she was awakened by a pounding at the door; that she observed her father, the defendant, outside of the house at her mother’s bedroom window; that upon defendant’s request she opened the front door; that she noticed an opened suitcase lying on the front porch; that defendant told her “to stay out of the way” and he then proceeded to her mother’s bedroom with a large butcher knife, approximately 15 inches long, in his hand; that she saw defendant swing at Arnold with the knife and cut both of his hands three or four times; that defendant was then saying that “He was going to make him [Arnold] into steaks”; that when Arnold got up and tried to go to the door defendant made a large cut on his left thigh; that she then left and went to get her uncle, defendant’s brother, who lived next door.