P. v. Chance 7/20/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C048825

Case Date: 11/01/2006

Preview:Filed 7/20/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, Plaintiff and Respondent, v. KENNETH WAYNE CHANCE, Defendant and Appellant. C048825 (Super. Ct. No. P03CRF0664)

APPEAL from a judgment of the Superior Court of El Dorado County, Eddie T. Keller, J. Reversed in part and affirmed in part. Appeals Unlimited and Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Assistant Attorneys General, Harry J. Columbo and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

1

On November 29, 2003, three sheriff's deputies approached the El Dorado County home of defendant Kenneth Wayne Chance to serve felony arrest warrants on him. The deputies were dressed

in black tactical vests with gold badges and insignia with the word "Sheriff." Defendant apparently noticed the deputies and ran away from the house. He was pursued on foot by Sergeant Tom Murdoch.

When Sergeant Murdoch reached the base of a hill, defendant was ahead by 40 to 50 feet. Department, stop." Murdoch twice yelled, "Sheriff's

Defendant glanced back, dropped a portable

phone, pulled out a nine-millimeter semi-automatic handgun, and continued running with the gun in his right hand. Murdoch

continued to chase defendant up a driveway to a residence. Defendant ran around the front of a travel trailer parked in the yard. Not wanting to get shot, Sergeant Murdoch did not follow defendant's path around the front of the trailer but went to the back of the trailer from the opposite side, with his gun drawn. Murdoch "pie[d] off" the corner of the trailer (slowly moved around the corner, gradually increasing his range of vision). Murdoch peered around the back of the trailer and saw defendant standing with his chest pressed against the side of the trailer, looking toward the front of the trailer, right arm extended holding the handgun in a shooting position, pointed toward the front of the trailer, left hand supporting the right hand. Murdoch approached with his handgun drawn and pointed at defendant, defendant turned and looked over his right shoulder 2 As

at him.

Defendant initially ignored Murdoch's repeated demands Murdoch did not shoot because he knew

to drop the gun.

defendant would have to move before he could turn the gun and fire at Murdoch. After what seemed like a long time to Murdoch,

defendant moved the gun to the center of his body, between his body and the trailer, and then flipped the gun onto the ground behind him. Defendant started to run. Murdoch chased him.

Defendant fell, was tackled, and offered no further resistance. When Deputy Bears recovered defendant's gun, it was discovered that the safety was not on and the magazine contained 15 rounds, but there was no round in the chamber. Sergeant

Murdoch was unaware of the absence of a round in the chamber until after the gun was recovered by Deputy Bears. If defendant Defendant

had pulled the trigger, nothing would have happened.

would have had to pull back the slide and then pull the trigger in order to fire the gun. The slide is spring-loaded; once the

slide is pulled back and let go, it will pick up the top bullet and feed it right into the chamber. hand. slide. at him. It can be done with one

Murdoch never saw defendant attempt to pull back the Murdoch was not aware of defendant ever pointing the gun Murdoch testified it would be speculation to say what

would have happened had he followed defendant's path, but Murdoch believed defendant's stance indicated defendant was going to shoot him.

3

Following a trial by jury, defendant was convicted of attempted murder (Pen. Code,

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