People v. Chavarria

peals from a judgment entered on the jury’s verdict finding him guilty of assault with a deadly weapon in violation of Penal Code section 245. The facts, when viewed in the light most favorable to respondent, are these;

Appellant’s brother, Thomas Chavarria, and Homero Hendióla were driving their respective automobiles on the afternoon of June 26, 1967, when they almost collided at an inter

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section in Corcoran, California. At the time appellant and Alinardo Rodriguez were riding in the Chavarria vehicle. An exchange of hot words and profanity ensued. Both Hendióla and appellant claim that the other called him a “queér.” After the altercation, Thomas Chavarria followed Hendióla home.

Later that evening Hendióla was in the front yard of his home when Thomas Chavarria drove up and parked his car in ■front of the gate. Thomas Chavarria informed Hendióla that he, appellant and Alinardo Rodriguez were coming into Hendióla’s yard. Hendióla answered that he would not allow them to enter. Then Thomas Chavarria reached into the hack seat of the car and picked up a short-handled hoe. Appellant armed himself with an iron bar. Alinardo Rodriguez picked up a chain.

As the three men entered the yard, Hendióla picked up a small stick about the size of a broom handle to defend himself. However, Thomas Chavarria struck him on the head and hand with the short-handled hoe. Appellant struck Hendióla with the iron bar. Hendióla then attémpted to retreat to the rear of the house, hut the trio continued to rain blows on his body with the bar, chain and hoe, inflicting serious injuries, including a fractured wrist. The vicious attack was witnessed by Dell Porter and Lillian Hata.

After the beating, appellant, Thomas Chavarria and Alinardo Rodriguez were arrested and jailed. While in custody appellant signed a written statement prepared by Officer Albert Bans. He admitted striking Hendióla with the iron bar but claimed that the fight was started by Hendióla and two other adults of Hexican extraction. He said his brother had no part in the fight.

At the commencement of his jury trial, appellant claimed that the written statement he gave to Officer Bans was involuntary because it was induced by a promise of leniency. Thus, the court convened out of the presence of the jury to determine the issue pursuant to Evidence Code section 405. Officer Bans testified that appellant volunteered to make the statement without any solicitation on Ban’s part and that no force, pressure, promises or coercion of any kind were used. He also said that before taking the statement he advised appellant of his