People v. Bain

• Decision Date: 18 October 1971
• Docket Number: Cr. 15230
• Court: California Supreme Court
• Parties: , 489 P.2d 564 The PEOPLE, Plaintiff and Respondent, v. William L. BAIN, Defendant and Appellant. In Bank

Page 684

97 Cal.Rptr. 684

5 Cal.3d 839, 489 P.2d 564

The PEOPLE, Plaintiff and Respondent, v. William L. BAIN, Defendant and Appellant.

Cr. 15230.

Supreme Court of California,

In Bank.

Oct. 18, 1971.

Sheldon Portman, Public Defender, Terry A. Green and Rose Elizabeth Bird, Deputy Public Defenders, for defendant and appellant.

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

PETERS, Justice.

William L. Bain was convicted by a jury of forcible rape (Pen.Code, § 261, subd. 3), false imprisonment (Pen.Code, § 236), oral copulation (Pen.Code, § 288a) and possession of a concealed dirk or dagger (Pen.Code, § 12020). The jury found him not guilty of kidnaping (Pen.Code, § 207). He appeals from the judgment sentencing him to concurrent terms in state prison for each of the convictions.

The testimony of the prosecutrix, a 24-year-old married woman with three children, may be summarized as follows: On the morning of January 26, 1969, she was on a Greyhound bus which left the San Francisco terminal about 2 a.m., bound for San Jose. She was traveling to Moffett Field, a naval installation near San Jose, where her brother was stationed and lived with his wife. The brother had agreed to meet her at the Moffett Field bus stop.

The defendant boarded the bus at the San Francisco Terminal and asked to sit next to her; she responded, 'I don't care.' He asked about the book she was reading and she showed him the title on the cover. Defendant then asked where she was going and she replied 'Moffett Field.'

He asked about her nationality and she replied 'I am Samoan.' After reading awhile, she fell asleep only to be awakened by a pressure on her ribs from defendant's elbow. She said 'Excuse me' and moved closer to the window. These were the only events while both were on the bus.

When the bus arrived at Moffett Field, she got off and discovered that her brother was not there. She said out loud 'Is there a phone booth around here?' and defendant, who had also gotten off the bus, directed her to a nearby booth. She was aware that defendant was following her because her suitcase had twice hit his leg. In the phone booth she started to dial her brother's number but defendant interrupted by pushing open the door of the booth. Thinking that he wanted to use the phone, she removed her money and went to another nearby booth.

Defendant again pushed in the door of the booth. This time, however, he brandished a knife in front of her face and threatened to slash her unless she came along with him. With the knife placed in her ribs, she went with defendant to a parking lot, where he tried to enter several parked cars. When these attempts proved unsuccessful, he took her to a dark alcove behind a restaurant.

In the alcove, defendant forced the prosecutrix to engage in three separate acts of sexual intercourse and one act of oral copulation.

Under cross-examination, the prosecutrix stated that she had not been wearing her wedding ring on the night of the incident. She explained that she had removed the ring while washing clothes that day and had forgotten to put the ring back on her finger. She did not attempt to run from defendant, even though he had, at one point, walked approximately 10 feet away from her; his knife was in his pocket then and there were houses and a motel nearby. Nor did she call for help, even though she had passed by two persons while defendant was following her.

Defendant's testimony may be summarized as follows: He met the prosecutrix at the bus terminal and attempted to 'pick her up.' After conversing about the book she was reading and her Samoan nationality, she agreed to allow him to accompany her on the bus to San Jose.

During the time they were on the bus together, he asked her if she was married and she said no; they talked and engaged in necking and petting. This included kissing and defendant's placing his hand on her leg. She was 'responsive.'

Defendant and the prosecutrix got off the bus together, with him carrying her suitcase. After she indicated that she did not want him to accompany her to her relative's home, they agreed to find a secluded place to 'make out.' He tried to find an open car but could not, and they went to the restaurant alcove, where they engaged in a single act of sexual intercourse. She willingly engaged in the act. In his version of the events, defendant made no mention of an act of oral copulation.

Just about the time that the sexual encounter ended Police Officer Steven Clifford, who was patrolling with his police dog, came upon prosecutrix and defendant. The policemen testified that he heard voices coming from the restaurant alcove, where he observed a man and a woman standing. When he called upon them to step away from the building, the defendant came forward, saying, 'This is only my date, man. We're not doing anything wrong. She's just my date.'

The prosecutrix, who had been standing in the alcove, then ran up to where he was standing. In the officer's words, she 'was very upset, crying * * *. She grabbed ahold of me and began to pull on my arm and choke me around the neck. Continuously shouting, 'He's going to hurt me. He's raped me and look out, he's got a knife.''

Officer Clifford further testified that he arrested and searched defendant. He found a knife in the pocket of defendant's trench coat. According to Officer Clifford, the blade of the knife, which opens like a pocketknife and locks in place, was open in the locked position; and the point was facing upward in defendant's pocket. Defendant, on the other hand, testified that the knife was closed when Officer Clifford found it. He claimed that he carried the weapon for protection in the dangerous area of San Francisco where he lived. He further stated that the prosecutrix had seen the knife on the bus, when it slipped out of his left hip pocket and he placed it in the trench coat pocket.

The knife is 11 inches long overall. Its blade, which measures slightly less than five inches long, is symmetrical. Although the sides are beveled the entire length on one side and half way down the other side, the sides are dull. The blade comes to a point and can be locked into an open position. There are handguards of approximately one-half inch in length, located where the blade meets the handle.

In the course of trial, the prosecutor asserted before the jury that the defendant and his counsel had fabricated the 'pick up' story; he stated that he, as a black man, would not be prosecuting a black defendant unless he personally believed the man to be guilty; he attacked the integrity of the defense attorney and the office of the public defender; and he referred repeatedly to racial matters.

Defense counsel objected to the statements about a fabricated defense and the prosecutor's expression of personal belief in defendant's guilt. He did not object to the attack on his integrity; nor did he object to the racial comments. Defense counsel also made comments about the racial aspects of the case.

The claim of fabrication was made by the prosecution as early as the Voir dire when the prosecutor alluded to the three-month period between the incident and the trial and asked a prospective juror whether he was aware that the defendant 'had a lot of chance to think about it and can state anything he wants to, * * *' The juror indicated that he did not understand the question. So, the prosecutor said, 'In other words, this thing occurred (three months ago) * * *. He's had a lot of time to get a lawyer.' This implication of a drummed up defense story passed without objection by the public defender.

However, when the prosecutor expanded on the theme in his closing argument, he was challenged by defense counsel. The prosecutor stated to the jury: '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 * * *. 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.'

When defense counsel objected after this statement, the judge did not reprimand the prosecutor, instead he told the jury that defense counsel had 'certainly acted properly as an attorney and he's defending his client well. He's not drumming up any stories.' The prosecutor responded '(W)hat I said was that did they expect him 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 public defender renewed his objection and moved for a mistrial, which the judge denied, telling the jury that defense counsel had conducted himself 'properly and ethically' at all times.

The prosecutor returned to the theme of a fabricated story in his rebuttal argument by drawing attention to the defendant's use of the word 'ejaculate' when describing his sexual relations with the prosecutrix. He left the clear impression with the jury that the defendant had been coached, by commenting 'I wonder where he picket up that word.'

The prosecutor stated several times that he believed the defendant to be guilty of the crimes charged. He wove these statements into a tight web with comments referring to the fact that he and defendant were both black. This occurred after the public defender suggested, in his closing argument, that the brother of the prosecutrix had not been called to explain the apparent inconsistency in her story about the arranged meeting at the bus stop because 'the police say to themselves * * * 'Well, we've got the nigger rapist and that should do it until trial,' * * *'

Evidently in response to this comment by the public defender, the prosecutor in his rebuttal stated to the jury: 'Now let me tell you something: Do I look white to you? As I look...