People v. Sanders

Defendant Sanders and a codefendant, Collins, were charged by an information with violation of section 245, Penal Code, assault with a deadly weapon. The attack occurred in the late afternoon of December 15, 1961. Earlier that day the victim, the two defendants, and two other persons, had gone to Manteca, where they secured some marijuana. Upon their return to Modesto from Manteca, the group of five apparently dispersed. At about 5 in the afternoon the victim met the two defendants and a third person at a bar in Riverbank, located in Stanislaus County near Modesto. After drinking some beer, they left the bar, the victim driving the group in his parents’ automobile. Along the way they picked up a fifth person who had had no previous contact with the group.

In addition to the cuts on his face, the victim’s finger and jacket were cut. The victim testified that he was cut on the finger by appellant, and that his jacket was cut by appellant’s knife. However, on cross-examination he conceded that the cut finger might have been caused by the broken bottle.

The victim was impeached in certain of his testimony. At the preliminary hearing he testified that he made contact with the sheriff’s office on the day of the crime when he was picked up on a bad check charge. At the trial he stated that he had called the sheriff’s office and asked to have someone come and get him. There was also a conflict in his testimony concerning his connection with the law enforcement officers. He denied working for the sheriff’s office, but later explained that he meant that he was not paid by the sheriff’s office. He conceded that his whereabouts was known to the sheriff’s office at all times. In substance, he testified that although he was acting as an informer, he was doing so without pay.

Appellant declined to take the stand and testify in his own behalf.

This appeal in propria persona adds to the ever-increasing number of cases in which an appellant has no conception of the respective functions of the trial and appellate courts. For example, appellant argues that since the victim was impeached, this court must discredit his testimony completely and reverse the conviction. Obviously he is unaware that it is the province of the trial judge to weigh the credibility

“Defendant argues that there are many inconsistencies and contradictions in the testimony of Bennett, and that it was inherently improbable. It was the function of the trial court, not this court, to resolve inconsistencies and contradictions, if any, in the testimony of Bennett. The trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. On appeal that portion which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment. [Citations.] A judgment cannot be set aside on appeal unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to sustain it. [Citation.] The testimony of Bennett does not appear to be inherently improbable. Testimony is not inherently improbable unless it appears that what was related or described could not have occurred. [Citation.] ‘To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.’ [Citations.] ” (See People v. Rankin, 160 Cal.App.2d 93 , 101 [ 325 P.2d 10 ].)

The victim’s testimony in the case at bar was neither inherently improbable nor did any physical impossibility militate against it.

The testimony of the victim of an assault, if believed by the trial court, is sufficient to sustain the conviction without corroboration. (People v. Kersey, 154 Cal.App.2d 364 , 367 [ 316 P.2d 52 ] ; People v. Oliver, 102 Cal.App. 29 , 34 [ 282 P. 813 ] ; People v. McCrasky, 149 Cal.App.2d 630 , 635 [ 309 P.2d 115 ].) Furthermore, the testimony of the victim is supported by inferences which the trial court had the right to draw from the fact that appellant fled the scene when the vehicle was wrecked during the assault (People v. Roshid, 191 Cal.App.2d 692 , 694 [ 12 Cal.Rptr. 794 ]), and from appellant’s refusal to take the stand and deny or explain the evidence presented against him. (People v. Adamson, 27 Cal.2d 478 , 489 [ 165 P.2d 3 ].)

Lastly, appellant asserts that he was inadequately represented by his counsel, the public defender. His only specific complaint is that he was induced by his attorney to waive his right to a jury trial. This waiver, appellant insists, was against his will. The record reflects the following proceeding at the outset of the trial:

“The Court : . . . I notice that they waived a trial by jury, is that correct?

“Mr. Hancock-. That is my understanding.

“The Court : Perhaps we should ask each Defendant again. . . . And you, Mr. Sanders?

“Defendant Sanders : Your Honor, I would like to talk to Mr. Hancock for a moment.

“The Court: Yes, you may. (Defendant Sanders and the Public Defender left the courtroom.)

(Later.)

“The Court: Mr. Sanders, you have heard me ask Mr. Collins, your co-defendant, if he waived trial by jury. I now ask you that. Every defendant in a criminal case has the right to have his case heard by a jury of twelve people. The record previously indicates that you waived a jury.

“Defendant Sanders: Yes.

“The Court: Do you waive a jury?

“The Court: You understand the Court will try the case.

“Defendant Sanders : Yes.

“The Court : And you waive a trial by jury and you ask the Court to try the case.

“Dependant Sanders: Yes.

“ The Court : Mr. Hancock, you consent and agree to this 1

“Mr. Hancock: Yes, Your Honor.”

The court carefully explained to appellant his right to trial by jury and insisted that he personally express his wish for trial by court or jury. In response to the court’s explanation and interrogation, appellant with obvious understanding of the proceeding personally waived his right to a jury, and at no time during the trial did he repudiate his choice. As frequently happens, his first complaint was made from hindsight, after the trial court found him guilty.

A review of the record reflects that appellant was represented at the trial as well as could be expected in light of the circumstances surrounding his case. There is nothing to indicate that appellant could have presented a meritorious defense, given a different lawyer. His complaint that he was not properly represented falls far short of a showing that the case was inadequately handled, or that the public defender displayed a lack of diligence or competence. (People v. Wein, 50 Cal.2d 383 , 410 [ 326 P.2d 457 ] ; People v. Logan, 137 Cal.App.2d 331 , 336 [ 290 P.2d 11 ]; People v. Odegard, 203 Cal.App.2d 427 , 433 [ 21 Cal.Rptr. 515 ].)

The judgment is affirmed.

Conley, P. J., and Brown, J., concurred.