People v. Martin

168 Cal.App.3d 1111 (1985)

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Nature of the Case

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Facts

Two unarmed youths, one 17 and the other 14 years old, broke into the residence of D's son to steal marijuana. D, an off-duty deputy sheriff who lived next door and who knew his son and his family were not home at the time, heard his dogs barking and went out to investigate. He saw one of the youths getting ready to enter his son's residence and heard the voice of another already inside the residence. D got his 12-gauge shotgun and told his wife to call the sheriff's office. D went back outside with his gun in hand he saw the two burglars fleeing. He pointed his shotgun at them and ordered them to stop. One immediately dropped to the ground. The other kept running, climbed a fence, and was about to get away. D fired one shot at the fleeing felon which resulted in his death. D was indicted for involuntary manslaughter. The magistrate denied D's motion at the conclusion of the preliminary hearing to dismiss the charges against him. After the information was filed, D moved to dismiss under section 995. The superior court granted this motion. P appealed.