People v. Bain

• Decision Date: 26 October 1970
• Docket Number: Cr. 7999
• Citation: 90 Cal.Rptr. 759,12 Cal.App.3d 277
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plainiff and Respondent, v. William L. BAIN, Defendant and Appellant.

Page 759

90 Cal.Rptr. 759

12 Cal.App.3d 277

The PEOPLE of the State of California, Plainiff and Respondent, v. William L. BAIN, Defendant and Appellant.

Cr. 7999.

Court of Appeal, First District, Division 4, California.

Oct. 26, 1970.

For Opinion on Hearing, see 97 Cal.Rptr. 684, 489 P.2d 564.

Sheldon Portman, Public Defender, Terry A. Green, Deputy Public Defender, San Jose, for defendant and appellant.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Don Jacobson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

William L. Bain appeals from a judgment sentencing him to concurrent terms in state prison after a jury found him guilty of forcible rape (Pen.Code, § 261, subd. 3), false imprisonment (Pen.Code, § 236)--an offense included within a kidnapping (Pen.Code, § 207) count in the information--and oral copulation (Pen.Code, § 288a). The jury found that appellant was armed with a deadly weapon in connection with all the foregoing offenses. There was also a guilty verdict and concurrent sentence as to a charge of possessing a concealed dirk or dagger (Pen.Code, § 12020).

The prosecution arose out of an incident which began when the complaining witness, a young married woman, boarded a bus in San Francisco late at night to go to Moffett Naval Air Station, Mountain View, to visit relatives. Appellant followed her onto the bus, sat by her, and made advances to her during the journey. When she got off the bus, appellant followed her and, exhibiting a weapon and threatening to injure her, forced her to walk behind some buildings nearby. There he forced her to submit to sexual intercourse and oral copulation. A police officer testified that, patrolling the area with his police dog, he discoverd appellant and the victim together and told them to move away from the partly hidden area where the alleged sexual offenses took place. The complaining witness immediately ran to the officer and, weeping, told him she had raped. She warned the officer, 'Look out, he has a knife.' The officer testified that he discovered a 'piercing blade' knife locked in an open position in appellant's trench coat pocket.

Appellant testified that he effected a 'pick up' of the complaining witness, that she consented to sexual intercourse, and that he had told the arresting officer that she was his date. Appellant testified that he carried the weapon for self-protection because of the nature of the neighborhood in which he lived, and claimed, contrary to the officer's testimony, that it was folded in his pocket when he was arrested.

The weapon which the arresting officer found in appellant's possession has an overall length of 11 inches. From the tip of the blade to the hilt or hinge, it measures 4.7 inches. The blade is sharpened (at the point only) on both sides, and is serviceable for stabbing but not for cutting; it can be folded back into the handle. The blade can be locked into an open position; a stiff spring-loaded catch must then be depressed before the blade can be closed. The weapon does not conform to any of the definitions of 'switch-blade knife' set forth in Penal Code section 653k.

Appellant contends that the weapon is, as a matter of law, not a dirk or dagger within the meaning of Penal Code section 12020. ¹ In People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836, 837, the court said: 'A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death, except what is commonly known as a 'pocket knife.' 'Dirk' and 'dager,' are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. * * * They may consist of any weapon fitted primarily for stabbing.' The knife found to be a dirk or dagger in Ruiz was a bayonet.

In People v. Forrest (1967) 67 Cal.2d 478, 481, 62 Cal.Rptr. 766, 768, 432 P.2d 374, 376, the court said: 'Although the large blade in the knife involved here is pointed and to a minor extent tapered, the knife folds like a pocketknife, and the blade of the knife when opened does not lock in place. This severely limits its effectiveness as a stabbing weapon, because if the blade should hit a hard substance such as a bone, there is grave danger that the blade would close upon the hand of the wielder. This distinguishes it from a dirk or dagger. It is not designed primarily for stabbing. Therefore, as a matter of law, it is not a dirk or dagger as these terms are used in the statute.'

The blade of the weapon in our case locks into place. When so locked it cannot be closed except by an intentional effort. There was evidence that the weapon was locked open at the time of the offenses. When open it is apparently useless (because it is sharp only at the point) for any purpose other than stabbing. There is no evidence that it had a use other than as a stabbing weapon. The jury's determination that the weapon is a dirk is not incorrect as a matter of law.

Appellant next attacks the determination that he was armed with a deadly weapon, contending that his weapon is not within the meaning of Penal Code setion 3024, subdivision (f), because it has a blade less than 5 inches long. Penal Code section 3024 prescribes a minimum sentence for persons armed with a deadly weapon during the commission of a felony. Subdivision (f) provides: 'The words 'deadly weapon' as used in this section are hereby defined to include any * * * dirk, dagger, [or] any knife having a blade longer than five inches, * * *.' Because the weapon was properly determined to be a dirk or dagger, it is not significant that the length of the blade was less than 5 inches.

Appellant contends that the deputy district attorney, Mr. Beasley, in his arguments improperly vilified defense counsel and asserted a personal belief in the guilt of appellant and in the credibility of the witnesses. Several of the prosecutor's statements were improper; it is necessary to review them in some detail to appraise their possible prejudicial effect.

During his closing argument, the district attorney made the following comment: 'Was that woman's trip legitimate? You might say to yourself, 'The defendant's got a good story.' Did you think he was going to come in here without a good story? He's had how long to prepare since January 25th? And I'm not--I don't want to imply that my colleague here, that he told him what to say, but he has the assistance of a lawyer.' (Emphasis added.)

After appellant's counsel objected to the statement and moved for a mistrial, the following occurred:

'MR. BEASLEY: Your Honor, I would certainly go along with counsel if he's taking me to the Bar. His job is only to defend this man, not to take part in his story.

'THE COURT: The ruling of the Court is going to be that Mr. Green has certainly acted properly as an attorney and he's defending his client well. He's not drumming up any stories.

'MR. BEASLEY: Your Honor, just a moment. The People would like to have a statement here. First of all, I didn't mean--and I'll tell the jury now--what Mr. Green did or did not do; what I said was that did they expect to come in without a story? And I've been a lawyer long enough that people don't hire lawyers just to give them money to make them rich. I'm saying that merely because he had a lawyer--that's what I'm saying. Now if that shoe fits, he can wear it.

* * *

* * *

'THE COURT: I am denying the motion for a mistrial, but I'm stating to the jury that, unequivocally, you have conducted yourself properly and ethically at all times, Mr. Green.

'MR. BEASLEY: Ladies and Gentlemen, if the People thought that Mr. Green had broken a law, I would have him in jail right now, and I would do it. He knows it. Green knows that I didn't pull any tricks. He's right down the street here, and he raises this thing. Every time he starts getting his tail in a bind, he starts screaming.'

The prosecutor's initial comment implied that appellant and defense counsel together had constructed a fictitious defense in the period between appellant's arrest and trial. It appears that the district attorney intended the jury to make that inference; no other possible purpose for the comments is evident. (Cf. People v. Adams (1960) 182 Cal.App.2d 27, 35, 5 Cal.Rptr. 795.) Citing People v. Beivelman (1968) 70 Cal.2d 60, 76-77, 73 Cal.Rptr. 521, 447 P.2d 913, respondent contends that the above comments are within the wide latitude given to the prosecutor to ask the jury to draw any reasonable inference from the evidence. But the only evidence purportedly supporting the prosecutor's implication is that three months went by between the arrest and trial. That circumstance is not enough. The prosecutor may raise any fair inference, but 'while he may strike hard blows, he is not at liberty to strike foul ones.' (Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314; People v. Lyons (1956) 47 Cal.2d 311, 318, 303 P.2d 329.) An unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct. (People v. Charlie (1917) 34 Cal.App. 411, 414-415, 167 P. 703 [not prejudicial]; People v. Nelson (1964) 224 Cal.App.2d 238, 254, 36 Cal.Rptr. 385 [not prejudicial]; People v. Nolan (1932) 126 Cal.App. 623, 640, 14 P.2d 880 [prejudicial]; People v. Talle (1952) 111 Cal.App.2d 650, 674-677, 245 P.2d 633 [prejudicial]; see annotation, 99 A.L.R.2d 508, Propriety and Effect of Attack on Opposing Counsel During Trial of a Criminal Case, § 31, pp. 577-579.)

If the trial court promptly sustains counsel's objection and admonishes the district attorney, misconduct can sometimes be cured. (People v. McCracken (1952) 39 Cal.2d 336, 338, 246 P.2d 913, 920 ['what some people won't do for a fee']; see Witkin, Cal.Criminal Procedure, Reversible Error, § 751, p. 724; annotation, 99 A.L.R. 2d 508, supra, § 25, p. 562.) On the other hand, an attempted cure may be too weak to be effective (People v. Pantages (19...