People v. Fosselman

• Decision Date: 17 March 1983
• Docket Number: Cr. N
• Citation: 33 Cal.3d 572,189 Cal.Rptr. 855,659 P.2d 1144
• Court: California Supreme Court
• Parties: , 659 P.2d 1144 The PEOPLE, Plaintiff and Respondent, v. Jerome FOSSELMAN, Defendant and Appellant. o. 22474.

Page 855

189 Cal.Rptr. 855

33 Cal.3d 572, 659 P.2d 1144

The PEOPLE, Plaintiff and Respondent, v. Jerome FOSSELMAN, Defendant and Appellant.

Cr. No. 22474.

Supreme Court of California,

In Bank.

March 17, 1983.

Curtis G. Oler, San Francisco, for defendant and appellant.

Quin Denvir, State Public Defender, Peter R. Silten and Philip M. Brooks, Deputy State Public Defenders, as amici curiae on behalf of defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Robert R. Granucci and Michael I. Mintz, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting him of assault with a deadly weapon, false imprisonment, and battery. He contends that the judgment is not supported by substantial evidence and that he was deprived of his right to the effective assistance of counsel because of his attorney's failure to object to alleged misconduct by the prosecutor. No reversible error appears on either ground.

We also review an order denying defendant's motion for new trial. (Pen.Code, § 1237, subd. 1.) Because the trial court mistakenly believed it lacked authority to grant a new trial on the ground of inadequate representation of counsel, it declined to rule on the merits of the motion. We conclude that such authority exists, and therefore reverse and remand the proceeding to the trial court for a new hearing on the motion for new trial.

Defendant was employed on the swing shift, and after completing work at 12:30 a.m. went to a coworker's home and drank two beers. About 5 a.m. he attempted to visit a female friend. She had recently moved, however, and another woman had taken her place in the apartment. The new tenant was disturbed at being awakened by defendant's insistent demand for entry, and threatened to call the police unless he left. Later, she did call the police when she heard the living room screen being removed; upon arrival, the police found pry marks and broken latches on the screen.

About 6:35 a.m. Carla Z. left her parents' home in San Jose to board a bus. As she walked down the street defendant approached her from behind, said his name was Michael, and tried to strike up a conversation. She quickened her step and replied she was in a hurry. Defendant kept pace for a block and again approached her in front of a store. He placed his hand on her shoulder, put a knife to her back, and told her to "get behind the building." She reached behind her back and felt the knife, which slightly cut her middle finger. As defendant seized her jacket she pulled away, lost her balance, and fell to her knees. She then arose and made her way to the middle of the road.

Ms. Z. stopped the first car to appear. Defendant momentarily remained on the sidewalk, but ran off when a male passenger in the car, Robert Lasko, climbed out and pursued him. While a woman passenger walked Ms. Z. to a nearby gas station to call the police, two other women in the car made a U-turn and drove toward a theater parking lot into which defendant had fled. The women in the car, joined by Lasko on foot, chased defendant around the parking lot and back into the street. They finally halted him, and held him by his hands as he caught his breath. Defendant said he had done nothing wrong and began to walk away, followed by Lasko and the women. As defendant turned around to face them, Lasko seized his shoulders and attempted to knee him in the groin. Defendant struck Lasko and fractured his jaw. The women helped to wrestle defendant to the ground, where they sat on him until a gas station attendant arrived and tied him up with jumper cables.

The police found defendant's knife near the parking lot. They arrested and searched him, and uncovered a knife sheath on his person. He later gave a taped statement in which he admitted having the knife, partially removing it from the sheath so that Ms. Z. could see it, and pushing her. He denied taking the knife fully out of the sheath; he claimed rather that the people who chased him had torn off his jacket and thrown the knife away.

Defendant was charged with attempted burglary (Pen.Code, §§ 664, 459), assault with a deadly weapon (id., § 245, subd. (a)), false imprisonment (id., § 236) with an enhancement for the use of a deadly weapon (id., § 12022, subd. (b)), and battery causing serious bodily injury (id., §§ 242, 243, subd. (d)). At the conclusion of the People's case, the court sua sponte ordered entry of a judgment of acquittal on the attempted burglary charge (Pen.Code, § 1118.1) because there was insufficient evidence of defendant's felonious intent at the time he removed the window screen. The jury returned verdicts of guilt on the remaining charges.

Defendant retained different counsel and moved for a new trial pursuant to Penal Code section 1181, on the ground of constitutionally inadequate representation by his former attorney. The substituted counsel conceded that section 1181 does not expressly provide for a new trial on the basis of ineffective representation, but contended that the court possessed inherent power to grant a new trial on that ground because defendant had been denied a fair trial. The court ruled that section 1181 precluded granting a new trial on the basis of inadequate counsel, and therefore denied the motion. Nevertheless, the court was so concerned about the "very cogent issue" of the adequacy of counsel that it took the unusual step of inviting defendant to apply for bail pending a determination of his appeal, and then granting that application.

Defendant first contends the evidence is insufficient to support his convictions of assault with a deadly weapon, false imprisonment, and battery. "When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468, and cases cited.) In applying this test, we must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.)

Defendant admitted shoving Ms. Z. He maintains, however, that he is not guilty of assault with a deadly weapon, but merely of simple assault. He cites his testimony that he never exposed the knife blade but only showed her the handle, assertedly in a curious attempt to convince her that he was "not crazy." Ms. Z. testified, by contrast, that the knife was put to her back and that she was slightly cut by it. The jury reasonably chose to believe her testimony, and we will not disturb that determination.

Similarly, we must uphold the guilty finding on the charge of felony false imprisonment. By his own admission defendant held Ms. Z. against her will; the jury further found on the basis of her testimony that in doing so he put a knife to her back. The evidence thus supports the implied finding that his conduct constituted an "unlawful violation of [her] personal liberty" (Pen.Code, § 236; see People v. Agnew (1940) 16 Cal.2d 655, 659, 107 P.2d 601; People v. Haney (1977) 75 Cal.App.3d 308, 313, 142 Cal.Rptr. 186), and that the act was felonious because it was effected by "violence" or "menace" within the meaning of Penal Code section 237. (People v. Arvanites (1971) 17 Cal.App.3d 1052, 1059-1060, 95 Cal.Rptr. 493.)

Defendant also contests the finding that in breaking Lasko's jaw he committed battery and caused serious bodily injury. The claim is refuted by the fact that Lasko's jaw was wired shut for three weeks after defendant hit him. (See Pen.Code, § 243, subd. (e)(5).)

A more complex question is whether defendant's act of striking Lasko was justified on the ground of self-defense. Of course, there is no right to "defend" against a valid arrest. (People v. Score (1941) 48 Cal.App.2d 495, 498, 120 P.2d 62.) Hence, if Lasko properly sought to arrest defendant, his grievance must be rejected. A citizen may arrest another if a felony has in fact been committed and he has reasonable cause to believe that the person to be arrested committed it. (Pen.Code, § 837, subd. 3.) As we have explained, defendant did commit a felony; further, Lasko had reasonable cause to believe defendant was the culprit. Thus, when Lasko first restrained him by holding his arms, it was defendant's duty not to resist. (People v. Garcia (1969) 274 Cal.App.2d 100, 105, 78 Cal.Rptr. 775; People v. Score, supra, 48 Cal.App.2d at p. 498, 120 P.2d 62.) Instead, he pulled free and began to walk away from the scene. Lasko was entitled to use reasonable force to detain him (Pen.Code, § 835), and the jury inferentially found that Lasko's attempt to knee defendant in the groin was reasonable under the circumstances. Although we do not intend to encourage such martial methods of effecting a citizen's arrest, it appears on these facts that the jury could reasonably have rejected defendant's claim of self-defense. (Cf. People v. Newsome (1921) 51 Cal.App. 42, 48-49, 195 P. 938.)

Defendant next complains of misconduct by the prosecutor. The record demonstrates that in cross-examining defendant the prosecutor resorted to inflammatory rhetoric, stated his personal belief based on facts not in evidence, brought out inadmissible character evidence, and attempted to arouse sexual prejudice in the predominantly female jury.

Defendant cites as one example of misconduct the prosecutor's description of him as "stinking of alcohol." Because a witness testified at trial that she smelled alcohol on defendant's breath, we cannot fault the prosecutor for this...