People v. Groce, Cr. 9152
Decision Date | 22 June 1971 |
Docket Number | Cr. 9152 |
Court | California Court of Appeals Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Robert GROCE, Defendant and Appellant. |
Christopher M. Reuss, Oakland (under appointment of the Court of Appeal), for defendant and appellant.
Evelle J. Younger, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Appellant was charged with two counts of assault with a deadly weapon (Pen.Code, § 245), i.e., for the stabbing of one John Arriola and a Mrs. Elizabeth Dillard. The jury returned a verdict of guilty of the assault on Mrs. Dillard but not guilty of the count charging him with assault on Arriola.
Appellant makes two claims of reversal for error: first, the court erred in refusing to instruct on simple assault and battery as a lesser included offense, and, second, the court failed to make inquiry as to the adequacy of his representation by the public defender.
The facts: For several months appellant and Mrs. Dillard had been living together. This relationship had been severed just prior to September 21, 1969. On that date, appellant observed Mrs. Dillard, her young son and three adults sitting in a parked car near a Doggie Diner in Alameda County. The appellant walked to the car and an altercation occurred involving Mrs. Dillard, two of the male occupants of the automobile on one side and appellant on the other. Appellant was wounded twice by a gun fired by John Arriola, one of the occupants, who stated he fired the shot in defense of Mrs. Dillard. Arriola and Mrs. Dillard claimed that appellant stabbed them. Mrs. Dillard claimed that she was stabbed because she had refused to continue being appellant's girl friend. Appellant's version of the conflict was in sharp contrast with that of the occupants of the Dillard automobile. Appellant testified that he had heard Mrs. Dillard was living with another man and had threatened to kill him. He approached the car merely to talk to her. He asked her why she wanted to 'knock (him) off.' He further stated he was attacked by John Arriola and acted in self-defense. Appellant denied assaulting Mrs. Dillard or that she had been stabbed. There was evidence that Mrs. Dillard, and the occupants of the automobile had some beer before the altercation. The owner of that automobile, a Mr. Johnson, was intoxicated.
Appellant requested instructions on the lesser but included offenses of simple assault and battery (Pen.Code §§ 240, 242). The trial court refused these instructions.
'(I)t has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense.' (People v. Morrison, 228 Cal.App.2d 707, 713, 39 Cal.Rptr. 874, 878; People v. Stanton, 274 Cal.App.2d 13, 18, 78 Cal.Rptr. 771.) An example of a situation in which the evidence will not support a finding of guilt of the lesser offense is a case in which the defendant denies complicity. (People v. Morrison, supra; People v. Tiner, 11 Cal.App.3d 428, 434, 89 Cal.Rptr. 834; People v. McCoy, 25 Cal.2d 177, 187--188, 153 P.2d 315.)
Had appellant testified to facts indicating an assault upon Mrs. Dillard but that he did not attack her with a knife, the instruction would have been warranted and the cases of People v. Cooper, 268 Cal.App.2d 34, 73 Cal.Rptr. 608, and People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, relied on by appellant, would apply. Appellant's defense consisted entirely of a denial of any kind of attack on Mrs. Dillard and since the gist of the prosecution testimony was the employment of a knife during the attack, the court was correct in refusing the instruction.
Appellant next claims that the trial court erred in failing to make inquiry into the adequacy of his representation by the public defender.
We agree with appellant.
The following are remarks of the court and appellant: (Emphasis added.)
Mrs. Dillard testified that she was taken to Highland Hospital after the incident. She testified that her stab wounds were stitched and she was given a shot. She also testified to having but one beer prior to the incident. One of the male occupants of the automobile in which she was riding was admittedly intoxicated. Since the decision of the jury was necessarily dependent upon its determination as to the credibility of witnesses, the hospital report was a crucial piece of evidence. Had it contained the information that Mrs. Dillard was not wounded, or that she also was under the influence of alcohol to any degree at the time of the medical treatment, the credibility of Mrs. Dillard and other of the state's witnesses would have been seriously impugned. The trial judge, of course, was not required to demand the production of the records. His duty was merely to make inquiry as to whether the failure to produce those records was a matter of discretion or neglect of appellant's counsel.
It is recognized that the objection is frequently made to the inadequacy of counsel. This objection seldom has merit because the decision of the attorney is normally made after due consideration on the trial tactics to pursue in the interest of his client. The court's inquiry, of course, is not to ascertain defense counsel's reasons for his decision for not following procedure requested by the...
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