People v. Allison

• Decision Date: 11 October 1966
• Docket Number: Cr. 264
• Citation: 245 Cal.App.2d 568,54 Cal.Rptr. 148
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles ALLISON, Defendant and Appellant. California

Page 148

54 Cal.Rptr. 148

245 Cal.App.2d 568

The PEOPLE, Plaintiff and Respondent, v. Charles ALLISON, Defendant and Appellant.

Cr. 264.

District Court of Appeal, Fifth District,

California.

Oct. 11, 1966.

Rehearing Denied Nov. 7, 1966.

Hearing Denied Dec. 7, 1966.

[245 Cal.App.2d 569] Laurence L. Angelo, Sacramento, under appointment by the District Court of Appeal, for appellant.

[245 Cal.App.2d 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 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 still in the hospital. At 12:30 or 12:45 a.m. appellant entered through the unlocked door of her apartment and went into Mrs. FH's bedroom. She screamed; he put his hand around her throat and told her to keep quiet and nothing would happen. He made his intentions known in coarse language. She was crying and told him she had just had a baby, and asked him not to do anything. Appellant said he wouldn't, but later indicated that he desired sexual intercourse. She pleaded for him not to since she had just had a baby. He pulled her nightgown back, looked at her and said to her that she was right--she was in no shape. He put his hand on her breast and the lower part of her body and again asked her if she didn't want to have sexual intercourse. She said that she was sure she did not. He asked her if she wanted to get dressed and go out and she said 'No.' Appellant left, telling her to stay in bed, but about 5 minutes later Mrs. FH got up, put on her coat and started out the door to call her husband. Appellant was waiting outside and grabbed her and choked her, telling her that he would not leave until she promised to go back to her bedroom and not tell anyone what had happened. Mrs. FH had no doubt about appellant's identity as the man who attacked her.

On the same early morning in North Sacramento, appellant entered an apartment occupied by Mrs. B. She had gone to bed about 1:30 a.m. Her 4-year-old daughter was sleeping in the same bedroom. At about 3:30 a.m. a man came into the bedroom. She jumped out of bed and asked him what he wanted. He said, 'Shut up and I'll tell you what I want.' He stated he didn't want any money; he wanted to have sexual intercourse with her. Mrs. B tried to dissuade him. Appellant looked at her daughter, said she was cute, and asked Mrs. B how she would like him to attempt intercourse with her daughter. Appellant grabbed Mrs. B by the throat and when she tried to scream, squeezed her and told her to keep her voice down and be quiet. Mrs. B slid or was pushed to the floor, appellant lifted her nightgown, put his hands upon her and committed an act in violation of section 288a upon her person, and had sexual intercourse with her after which he told her to lie down on the bed. He then left. The police were called and discovered a chair outside the house under a window which had not been there earlier in the evening. Appellant's fingerprints were discovered on the windowsill under which the chair was found. Mrs. B did not get a look at the face of her assailant and was unable to make a sight identification, although she stated that appellant was about the same size and build as her assailant. After the attack she picked appellant out of a police lineup, identifying him by his voice and his slight southern accent.

Appellant raised the defense of alibi as to the counts involving Miss D, and admitted having visited Mrs. H but stated that he had never made any advances nor had he touched her in any way. Regarding the offense testified to by Mrs. FH, appellant also raised the defense of alibi and he denied ever having been in either Mrs. FH's or Mrs. B's apartment on the evening of May 1 or the morning of May 2.

The claimed reversible error by reason of the court's having failed to instruct on its own motion regarding the lesser included offense of simple assault on the assault with intent to commit rape count is grounded upon cases such as People v. Jackson, 59 Cal.2d 375, 380, 29 Cal.Rptr. 505, 379 P.2d 937; People v. Dukes, 241 A.C.A. 582, 50 Cal.Rptr. 609; People v. Ali, 241 A.C.A. 753, 762, 50 Cal.Rptr. 751; and People v. Wade, 53 Cal.2d 322, 344, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 124 where it is said:

'In determining what instructions a trial court is required to give without request, the rule is usually stated to be that the court has a duty to give instructions on the general principles of law governing the case, even though not requested by the parties, but it need not instruct on specific points developed at the trial unless requested. * * *

'The rule seems undoubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system. Yet the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.

'The most rational interpretation of the phrase 'general principles of law governing the case' would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.'

Respondent contends that the court need not instruct on lesser offenses unless requested to do so. No such request was made in this case. People v. Calderon, 155 Cal.App.2d 526, 530, 318 P.2d 498; People v. Walker, 155 Cal.App.2d 273, 275, 318 P.2d 77; Witkin, California Criminal Procedure, Trial, section 480, pages 486--487, seem to support the respondent's position. The case of People v. Morrison, 228 Cal.App.2d 707, 39 Cal.Rptr. 874, outlines the various situations relative to the court's duty to give instructions upon a lesser included offense or degree. The rules there set forth may be summarized,...