245 Cal.App.2d 568, 264, People v. Allison

Docket Nº:264
Citation:245 Cal.App.2d 568, 54 Cal.Rptr. 148
Opinion Judge:[10] Mcmurray
Party Name:People v. Allison
Attorney:[7] Laurence L. Angelo, under appointment by the District Court of Appeal, for Defendant and Appellant. [8] Thomas C. Lynch, Attorney General, Raymond M. Momboisse and Ronald W. Tochterman, Deputy Attorneys General, for Plaintiff and Respondent.
Case Date:October 11, 1966
Court:California Court of Appeals

Page 568

245 Cal.App.2d 568

54 Cal.Rptr. 148

The PEOPLE, Plaintiff and Respondent,

v.

Charles ALLISON, Defendant and Appellant.

Crim. No. 264.

California Court of Appeal, Fifth District.

Oct. 11, 1966.

Rehearing Denied Nov. 7, 1966.

Hearing Denied Dec. 7, 1966.

Page 569

COUNSEL

Laurence L. Angelo, Sacramento, under appointment by the District Court of Appeal, for appellant.

Page 570

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, Sacramento, Ronald W. Tochterman, Deputy Attys. Gen., for respondent.

OPINION

McMURRAY, Justice pro tem. [*]

Defendant appeals from judgments entered on jury verdict finding him guilty of three counts of burglary, two counts of violation of section 288a of the Penal Code, two counts of forcible rape, and one count of assault with intent to commit rape. These offenses were committed against three women. The sentences on the burglary counts were suspended. The sentence as to one count of violation of section 288a of the Penal Code was to run concurrently with the sentence on one count of forcible rape. These offenses were against Miss D. The count of assault with intent to commit rape, committed against Mrs. H, was to run consecutively to the counts affecting Miss D, and the sentences on the counts of violation of section 288a of the Penal Code and forcible rape committed against Mrs. B were ordered to run concurrently, but consecutively to the counts affecting Miss D and Mrs. H.

Appellant contends that the failure of the trial court to instruct on its own motion regarding the lesser included offense of simple assault within the charge of assault with intent to commit rape, the failure of the court to instruct on the felonies which would be necessary to find appellant guilty of burglary, and the insufficiency of the foundation laid for introduction of a writing used to impeach appellant, together with the inadequacy of representation afforded by trial counsel, require a reversal.

At about 11:30 p.m. on April 27, 1965, Miss D locked the door of her apartment in North Sacramento and went to bed. At approximately 3 a.m. she was awakened by appellant who was leaning over her bed. He stated, 'Don't scream and you won't get hurt,' proceeded to commit the violation of section 288a upon the person of Miss D, and had sexual intercourse with her twice. Appellant had a slight southern accent. Miss D was frightened and crying. She testified that she had a good look at appellant, and identified appellant as the man who attacked her.

Mrs. H lived in an apartment in North Sacramento. At about 3 p.m. on May 1, 1965, three days after returning from the hospital with her newborn baby, she saw appellant at her apartment house swimming pool with another woman who

Page 571

lived in the same apartment house. Mrs. H talked to appellant for approximately two hours, drank a beer with appellant and the other lady, and later that night, at about 11 p.m., being alone except for her two daughters and a child of a neighbor's for whom she was babysitting, she went to bed. At about midnight she heard someone come into the apartment; she had left the door unlocked so that the neighbor could pick up her child, and at first she thought it was the neighbor. When a man came into the bedroom, she thought it was her husband and called his name. The man got into her bed fully clothed, kissed her on the month and called her 'honey' and 'darling.' It was dark; she did not recognize appellant by sight; but when he spoke, she recognized his voice as that of the man she had met at the pool that afternoon. Appellant put his arm across her neck, trying to hold her down. She told him she wanted to get up and go to the bathroom and he said, 'No, you don't have to.' Her 3 or 4-day-old baby made some noise, and she told appellant she had to get up to attend to the baby. Appellant let her out of bed and followed her into the living room where the bady was. Mrs. H there saw and recognized appellant. As she bent over to care for the baby, appellant put his arm around her waist; she pushed him back and said, 'Let me tend to the baby.' He stepped back, then came back and put his arm around her again. She pushed him back and yelled as loudly as she could. Appellant made a gesture with his fist raised. He lowered his hand and walked out. Mrs. H locked the door and called the police.

Mrs. FH testified to a similar occurrence shortly after the occurrence in Mrs. H's apartment. Mrs. FH also lived in North Sacramento. Appellant was not tried for this offense. Mrs. FH had gone to bed at about 11:45 p.m. She had had a baby 10 days before, but that baby was...

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