In re Culbreth

[332]Opinion

MOSK, J. The petitioner was found guilty, after a jury trial, of two. counts of second degree murder (Pen. Code, §§ 187, 189) and one count of voluntary manslaughter (Pen. Code, § 192, subd. 1). The jury also found that petitioner had been armed and had used a firearm, a rifle, in the commission of each of the offenses (Pen. Code, § 12022.5).

The trial judge sentenced petitioner to consecutive sentences on the two murder counts, and to a concurrent sentence on the manslaughter count. As to each count he declared in the judgment that a deadly weapon was used in the commission of the crime, thus purporting to apply the additional penalty presented in section 12022.5.1

At the outset we point out that section 12022.5 does not enumerate manslaughter as an offense which, if committed by use of a firearm, invokes an additional penalty. In a prior unpublished decision the Court of Appeal modified the judgment to provide that section 12022.5 does not apply to count 3, the manslaughter conviction.

We proceed, then, to the primary issue: whether section 12022.5 may be applied to both of the other offenses separately if, as the evidence reveals, there was a single course of conduct resulting in multiple victims.

The facts are relatively uncomplicated. On December 17, 1970, petitioner shot and killed his common-law wife, his mother-in-law, and his brother-in-law. The killings were accomplished with a .30-.30 rifle.

In the days prior to the killings events in the household had been stormy and all the parties bellicose. Petitioner had beaten his wife and [333]threatened to kill her. The evening before the offense petitioner’s wife shot at him with a rifle while he was standing on the front lawn.

Petitioner testified in his own defense. He related that on the night of the killings, he and his wife had argued and she had kicked him. After that encounter, petitioner started to leave the house. As he opened the bedroom closet to find his jacket he heard his wife tell her mother to get a pistol because she intended to kill him. He heard the pistol being cocked. He saw his brother-in-law, cursing and threatening, coming toward him with a straight razor in his hand. Petitioner picked up his rifle. As he backed toward the front door, his brother-in-law shouted he was going to kill him. Petitioner fired. Petitioner remembered nothing further until he was outside the house. He did not deny shooting his wife and mother-in-law. The testimony indicated the shots were fired “real fast.”