Metropolitan News-Enterprise

 

Thursday, December 12, 2002

 

Page 1

 

Appellate Court Rejects Vigilanteís Claim of Necessity

 

By ALLISON LOMAS, Staf Writer

 

A manís assault upon his girlfriendís alleged drug dealer and lover was not the result of necessity, a state appellate court yesterday ruled, rejecting a convictís bid for relief.

Sifting through a web of conflicting testimony, Justice Richard M. Sims III, writing for the Third District Court of Appeal, concluded Joseph Miceli should have called the police, rather than taking it upon himself to confront a neighbor who he believed provided methamphetamines to Brenda Miceli. Justices George Nicholson and Ronald Robie concurred in the opinion.

The defendant failed to show that a timely complaint to the police would have been futile, Sims said, adding that the defendantís belief in the necessity of his acts was not objectively reasonable.

ďAs a matter of public policy, self-help by lawbreaking and violence cannot be countenanced where the alleged danger is merely speculative and the lawbreaker has made no attempt to enlist law enforcement on his side,Ē the justice said.

The defendant testified that he had previously called the police at least twice about his girlfriendís alleged drug abuse, and said that on the day of the attack she was missing and he believed her to be in danger. But he admitted that he did not contact the authorities that day.

Miceli was convicted in Placer County Superior Court and placed on five yearsí probation on three counts arising from a confrontation with Matthew Linton and others on July 4, 1999.

Witnesses testified they saw defendant pistol whip Linton and threaten to kill him. The defendant admitted to intimidating Linton and two visitors with an unloaded .45-caliber Glock semiautomatic handgun, but denied striking the man.

The altercation was the culmination of a series of escalating events.† According to the defendantís testimony he became concerned about Brenda Miceliís renewed drug use in May 1999.† Brenda Miceli had taken Joseph Miceliís surname during their 10-year relationship, which produced two children, but the two never married.

On the advice of a Rocklin police captain, the defendant said, he attempted to contact the head of the departmentís drug enforcement program, but his call was not returned.

On July 2, the Micelis had a quarrel and Brenda Miceli left their home and drove off with Linton.† The next day, Joseph Miceli testified, the coupleís daughters revealed that their mother had asked that they not tell him that Linton was supplying her with metamphetamine.

Brenda Miceli had not yet returned home on July 4 when he found that their home had been broken into, the defendant said.† At that point, Joseph Miceli testified, he headed over to Lintonís house with his unloaded gun because he was concerned about his girlfriend.

The jury convicted him of assault with a semiautomatic firearm, assault with a firearm, drawing or exhibiting a firearm, and failing to register the gun used in the crimes.† In yesterdayís ruling the court struck the conviction for assault with a firearm,† finding it to be a lesser included offense of assault with a semiautomatic firearm, but rejected Joseph Miceliís claim that the trial judge should have instructed the jury on assault with a deadly weapon as a lesser included offense of assault with a semiautomatic firearm.

No such instruction was required, Sims explained, because there was no evidence from which a jury could have concluded that Linton was assaulted with a deadly weapon that was not a semiautomatic firearm.

The case is People v. Miceli, C036703.

 

Copyright 2002, Metropolitan News Company