People v. Foss

STONE, J. This is an appeal from a judgment entered after a jury found appellant guilty of violation of Penal Code, section 245, assault by means of force likely to produce great bodily injury.

Pursuant to appellant’s request for appointment of counsel [902]to represent him on this appeal, an attorney of many years’ experience in the trial and appeal of criminal matters, was appointed. He advised this court by letter that his study of the record led him to believe that defendant does not have a meritorious defense on appeal, and for that reason he could not in good conscience accept the appointment. Appellant then proceeded with the appeal in propria persona.

We have carefully read the record in this case, and studied the briefs of appellant and respondent in an effort to protect the interests of appellant, who represents himself without benefit of counsel. Appellant bases his appeal upon two grounds: one, that the court lacked jurisdiction to try him; two, that he was inadequately represented by court-appointed counsel.

The assault of which appellant was convicted occurred in his home in the City of Modesto. Appellant and his wife had been having marital difficulties for some time, and immediately preceding the attack appellant had returned to his home after a five or six days’ absence. His wife was questioning him about money for food and utilities when his father-in-law, a Mr. Reise, entered the home bringing with him a shopping bag filled with clothing and a pair of shoes for appellant’s children. Reise, an investment banker residing in San Francisco, had driven to Modesto the morning of the attack. When Reise entered the house, appellant rushed at him, seized him by the neck or head, hit him in the face several times, and Imoeked him to the floor. Appellant picked up the shopping bag carried by Reise and struck him across the face and chest with it. Appellant then walked hurriedly out of the house toward his car; his daughter, Barbara, who had witnessed the incident, followed him to the porch and shouted for help. Appellant turned and ordered her to “shut up.”

Reise had been struck on the chin and left jaw so severely that blood and clear fluid ran from the corner of his mouth. He was still unconscious at the time of the trial, some nine months later. Bleeding into the brain and the brain stem caused irreversible brain damage leading to a medical prognosis of eventual death as a result. Reise was 64 years of age, 5 feet 10 inches tall, and weighed 160 pounds. Appellant was 36 years of age, 6 feet 3 inches tall, and weighed 294 pounds. Appellant pleaded not guilty, and not guilty by reason of insanity.