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People v. Trevathan2/4/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted appellant Jeffrey Trevathan of mayhem (Pen. Code, § 203, count one) and false imprisonment by means of violence, menace, fraud or deceit (§§ 236, 237 subd. (a), count three) in connection with an altercation between Trevathan and the victim Foster in which Trevathan's dog attacked and injured Foster. The jury found true in connection with count one that Trevathan personally inflicted great bodily injury on Foster within the meaning of section 1192.7, subdivision (c)(8). The jury deadlocked on the charge of assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count two) and on the special allegation in connection with count one that Trevathan personally used a deadly weapon.
On appeal, Trevathan challenges the sufficiency of the evidence and the propriety of the instructions. He also asserts ineffective assistance of trial counsel.
I. FACTUAL BACKGROUND
A. Prosecution Case-in-Chief
Foster rented and lived in a house on Lisbon Street (the house) for 11 years prior to 1999. In 1997 he sublet a room to Mr. Hoffman, and in April 1999 he sublet a room to Trevathan. Trevathan shared his room with his Rottweiler dog. Trevathan and Foster agreed that if the dog caused problems, Trevathan and the dog would move out of the house. The dog immediately began causing problems, and Foster warned Trevathan he might be required to leave the house.
Hoffman complained the dog was being aggressive toward him, and Foster "set down the rules" and again warned Trevathan. Trevathan rebuffed Foster, saying, "No, I don't have to do what you say." Foster then told Trevathan to move out within 30 days. Because of escalating hostilities between Trevathan and Foster, Foster began eviction proceedings against Trevathan. Foster also began having problems with Hoffman at this time; Hoffman refused to pay his rent because Trevathan stopped paying rent. Accordingly, Foster also began eviction proceedings against Hoffman.
After the eviction proceedings began, the hostility between Trevathan and Foster increased. When Foster left for work or school he would on occasion find his car tires flattened, or the gates locked, or Trevathan saying, "You are not leaving here until you sign these papers stating that you're not going to evict me." Trevathan also retaliated against Foster by stealing Foster's property. Trevathan also accosted Foster, using racial slurs, and stated Foster could not evict him. On June 1, 1999, shortly after midnight, Trevathan, accompanied by two friends, entered Foster's sleeping area while Foster was asleep. Trevathan shone a flashlight in Foster's face and said, "Now let's see what you're going to do[,] you f---ing nigger," and demanded that Foster sign papers to stop the eviction. The next night at around 2:00 a.m., Trevathan again entered Foster's room and demanded he sign papers to stop the eviction. On this occasion, his dog accompanied Trevathan; the dog sniffed around the room for about one hour and Trevathan refused to restrain or remove it.
Foster feared for his safety and moved out of the house the following day. However, Foster's move was only a temporary measure; he kept a key to the house, left most of his possessions (including automobiles) at the house, and planned to return as soon as he had evic
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