People v. Tomas
| Decision Date | 28 September 1977 |
| Docket Number | 30429,Cr. 29713 |
| Citation | 74 Cal.App.3d 75,141 Cal.Rptr. 453 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Gregory TOMAS, Defendant and Appellant. Application of Gregory TOMAS, on Habeas Corpus, Petitioner. |
Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, under appointment by the Court of Appeal, for defendant, appellant and petitioner.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen. Crim. Div., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and William R. Weisman, Deputy Attys. Gen., for plaintiff and respondent.
In these consolidated proceedings, defendant Gregory Tomas (1) appeals from the judgment sentencing defendant to prison for the term prescribed by law on two counts of assault upon peace officers engaged in the performance of their duties by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (b)), and (2) seeks by writ of habeas corpus to invalidate the judgment upon grounds not apparent from the appellate record. Both attacks upon the judgment are based upon defendant's claim that he was denied effective assistance of counsel by trial counsel's incompetence as a result of which crucial defenses were withdrawn from the case.
A full complement of briefs has been filed in both matters. However, defendant has presented all legal argument in his memorandum of argument in support of the petition which has been incorporated by reference as his appellant's opening brief. 1 Inasmuch as all contentions relating both to the appeal and the petition are subsidiary to the claim of incompetence of counsel, they will be discussed herein on the basis of the facts applicable thereto regardless of the source of such facts.
The charges of which defendant was convicted arose out of an incident in which serious injuries were inflicted by defendant upon two Torrance police officers who were attempting to arrest him. The facts of this incident as related by the People's witnesses strongly supported the charge. According to Officer Hrehor, one of the victims, he and Officer Cook, the other victim, responded to a report of a disorderly drunk at a bar in Torrance. The bar employee pointed to defendant as the "subject" and advised that he was intoxicated and refused to leave. The officers asked defendant to step outside and escorted him from the bar to the vicinity of the police unit near it front door. Hrehor observed defendant having difficulty staying on his feet, unless he leaned against the police unit, and smelled alcohol. Upon questioning defendant, Hrehor concluded that he was a public drunk in violation of Penal Code section 647, subdivision (f), and advised him that he was under arrest. At this point, defendant stated he was not going to jail and hit Officer Hrehor on the top left side of his head with his closed right fist. Defendant then started running through a parking lot. After chasing him approximately 15 paces, Officer Cook tackled defendant and attempted to restrain him. Cook was joined by Hrehor and the two of them ultimately subdued defendant. Before they accomplished this, however, he repeatedly struck them with his fists and kicked them with his heavy work shoes. Officer Hrehor was kicked over his left eye, raising a lump the size of a walnut.
After defendant was finally subdued and placed in the back seat of the police unit, Hrehor became semiconscious and had to be assisted by Officer Cook. Defendant then attempted to kick out a rear door of the police vehicle. When Officer Cook opened it to deal with the situation, defendant kicked him in the left eye. Both officers required hospitalization. The entire episode was witnessed by a civilian witness who was at the bar when the officers arrived left at the same time the officers took defendant outside, and observed the altercation at close range. She corroborated the officers' testimony that defendant "struck out at one of the officers and took off running," after saying "he wasn't going to jail."
A photograph of defendant's shoes was received in evidence. It shows that they were heavy, work-type shoes. The civilian witness to the altercation identified the shoes from the picture as shoes of a kind that she had sold as a shoe salesperson and stated that "(i)t looks like a steel-toed shoe" of a type sold by her.
Defendant testified in his own behalf. According to defendant, the altercation started when the officer advised him that he was under arrest. Defendant did not want to go so he pulled away. The officers brought him back and when one of them pulled out a night stick, defendant grabbed it. Defendant did not think that he had swung at the officers and he explained Hrehor's injury as the result of the fact According to defendant, his sole intention was to get away and he was not "intentionally trying to injure a particular officer." He explained his conduct on the basis of being "kind of stubborn" as a result of taking too many vitamins which had "thickened my thinking up where I couldn't really think too much."
Defendant also called Officer Hrehor who testified that defendant was "stuporously drunk" and "unable to care for himself."
The oral argument was brief. Defendant was represented by a deputy public defender. He argued first that he did not think the arrest under Penal Code section 647, subdivision (f), was justified. When the court indicated disagreement with this position, counsel argued that all of defendant's actions were "a result of trying to escape" without "intent here to injure or otherwise harm the officers." Counsel for the People argued that defendant's deliberate kicking for the purpose of trying to escape made him guilty as charged and that the use of the steel-toed shoes justified a finding of force likely to produce great bodily injury.
At the conclusion of the oral argument the court found defendant guilty on the two charges. Counsel for the People recommended that the court have a doctor appointed to examine the defendant in connection with probation and sentencing. The court stated orally,
The written "Letter of Psychiatric Appointment," dated May 13, 1976, however, directed Dr. Deering to file the report in Department SWL, and requested answers to questions as follows:
"2. [/] (1026 PC) Was the defendant sane at the time of the commission
of the alleged offense? ('M'Naghten Insanity'), i.e
first did the defendant have sufficient mental
capacity to know and understand what he was doing, and
second, did he know and understand that it was wrong
and in violation of the rights of another? To be sane
and thus responsible to the law for the act committed
the defendant must be able both to know and understand
the nature and quality of his act and to distinguish
between right and wrong at the time of the commission
of the offense
3. [/] (1026 PC) Has the defendant 'fully recovered his sanity,' i.e
has he improved to such an extent that he is no longer
a danger to the health and safety of others, including
himself?
4. [/] (1026a PC) Has he improved to such an extent that he is no longer
a danger to the health and safety of others, including
himself? (In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr.
553, 496 P.2d 465)
5. [/] (1368 PC) Is the defendant presently able to understand the
nature and purpose of the proceedings taken against
him?
6. [/] (1368 PC) Is he presently able to cooperate in a rational manner
with counsel in presenting a defense?
7. [/] (1368 PC) Is he presently able to prepare and conduct his own
defense in a rational manner without counsel?
8. [ ] Did the defendant at the time of commission of the
alleged offense have the mental capacity to form the
specific intent to __________ (diminished capacity)
9. [/] Did the defendant at the time of the commission of the
alleged offense have the mental capacity to
deliberate?
10. [/] Did the defendant at the time of the commission of the
alleged offense have the mental capacity to
premeditate?
11. [/] Did the defendant at the time of the commission of the
alleged offense have the mental capacity to harbor
malice?
12. [/] Did the defendant at the time of the commission of the
alleged offense have the mental capacity to
meaningfully and maturely reflect upon the gravity of
his contemplated acts, and if so to what extent could
he so reflect?
13. [/] (1026,1370 In your opinion, should the defendant be required to
PC) undergo outpatient treatment in lieu of commitment to
a state hospital or other mental health facility, and
if so, where and under what financial arrangements?
14. [/]
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...a doubt to be determined objectively from the record." (People v.. Sundberg (1981) 124 Cal.App.3d 944, 955-956; see also People v. Tomas (1977) 74 Cal.App.3d 75, 90.)When a trial court has ordered a hearing to determine a defendant's competence, it must suspend all proceedings in the crimin......
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People v. Stanley
...defendant was psychotic and unable to cooperate with counsel or conduct his own defense in a rational manner]; People v. Tomas (1977) 74 Cal.App.3d 75, 141 Cal.Rptr. 453 [judgment of conviction reversed for failure to conduct competency hearing]; In re Newmann (1976) 65 Cal.App.3d 57, 134 C......
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People v. Superior Court (Marks)
...361, 367, 182 Cal.Rptr. 912 [trial court "lacks jurisdiction to try, judge, or sentence a defendant"]; People v. Tomas (1977) 74 Cal.App.3d 75, 87-88, 141 Cal.Rptr. 453 ["Since the matter is jurisdictional [citation], the court lacks the power to try, judge, or sentence...."]; cf. § 1367 [d......
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People v. Superior Court (Marks)
...p. 808, 106 Cal.Rptr. 178, 505 P.2d 1018, emphasis added.) This absence of criminal jurisdiction is illustrated by People v. Tomas (1977) 74 Cal.App.3d 75, 141 Cal.Rptr. 453. Following the defendant's felony conviction, but before sentencing, the court received (and apparently overlooked) a......