People v. Bias, Cr. 3549

CourtCalifornia Court of Appeals
Citation170 Cal.App.2d 502,339 P.2d 204
Decision Date20 May 1959
Docket NumberCr. 3549
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. James E. BIAS, Defendant and Appellant.

Edward J. Rice, Jr., Oakland, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

BRAY, Presiding Justice.

Defendant was charged with three felony counts: (1) burglary; (2) violation of section 288a, Penal Code; (3) assault with a deadly weapon. A jury found him not guilty of count (3) but guilty of counts (1) and (2). From the judgment entered on the latter, defendant appeals.

Questions Presented.

1. Was the prosecutrix an accomplice as a matter of law?

2. Sufficiency of the evidence.

3. Alleged errors in instructions.

4. Admissibility of certain evidence.

5. Did defendant receive a fair trial?


Mary Ellen, 16 years of age, married and about five months pregant, lived in apartment 25 of the Neptune Court Apartments in Alameda. Her husband was in San Diego on duty with the Navy. About 9:30 p. m. a friend, Laurie Baker, whom she had been visiting, drove her to her apartment. Laurie left about 9:45 p. m. Shortly thereafter Mary Ellen heard a knock at the door. She asked who it was and a voice said 'Jim.' She opened the door and saw defendant who asked if he could come in. Refusing him, she closed the door. About half an hour later, she heard another knock at the door. On opening she again saw defendant. She started to close the door, but defendant said, 'Do you want to get this in your stomach?' Feeling a knife stick her, she backed up. Defendant entered the room and ordered her to 'strip.' She hesitated, asked him to leave, but he shook his head and kept waving the knife. She disrobed and at his order laid upon the bed. Defendant then went around to the other side of the double bed and laid down opposite her. She asked him to lay down the knife. He shook his head, forced her head down toward his penis and said 'Blow it.' Defendant then had an emission in her mouth. Mary Ellen got sick, went into the kitchen and vomited. She heard the door slam. She dressed, went to a neighbor's to stay for the evening. She merely told the neighbor that a man had broken into her apartment. The next day she asked the landlady for another apartment because someone had tried to break in. The same day the informed the police, and identified defendant, also clothing belonging to him as similar to that worn by him at the time of the attack. Defendant had lived in apartment 32 for a period of approximately two and a half months some seven months previously.

Mrs. Minderliter, who occupied apartment 32, testified that on the night in question, she was alone with her baby. About 10 o'clock someone who said he was 'Jim' knocked on her door. Looking was in a very wet condition. It was raining with a gun in his hand. She then went out the back way to a neighbor's. Upon returning defendant was gone. She identified defendant at the police station as well as the clothing shown to Mary Ellen. This clothing had been obtained by the police the next day at defendant's apartment and was in a very went condition. It was raining the night of the attack.

Defendant denied being at the Neptune apartments that night. He testified that about 5 p. m. he left his apartment and went to the DeLux Bar in Oakland where he stayed about two hours. He met a girl there who went with him to Jensen's Bar in Alameda. About two hours later they went to Al's Club. After a few minutes they went to Horgan's Bar, remaining there about two hours, when they went to his apartment. The girl left about 11:30 p. m. or 12. He did not know where the girl lived or worked, but only that her name was Marie or Carol. He remained alone in the apartment for the rest of the night. He admitted that the clothing obtained by the police at his apartment was that worn by him on the night in question.

Mary Dreon, owner of Horgan's Club, testified that defendant and a woman left there between 7 and 9. (Defendant claimed to have been there between 9 and 11 approximately.)

Inspector Hopper testified that the second day after his arrest defendant stated that he was not at the Neptune Court that night, 'not to my knowledge,' and that between 9:30 and 10:30 he guessed that he was home or might have been in a bar. Upon being accused of the offense, defendant said, 'I don't think I did it.' In other portions of the statement he denied any participation in the offenses.

1. Accomplice.

Defendant contends that Mary Ellen was an accomplice as a matter of law, hence required corroboration, and that there was no corroboration. It is well settled that anyone who participates in an act of sex perversion because of threats and is in fear of great bodily harm is not an accomplice and such victim's testimony need not be corroborated. People v. Willis, 1954, 129 Cal.App.2d 330, 276 P.2d 853. Whether one is an accomplice is a question of fact. Idem, 129 Cal.App.2d at page 334, 276 P.2d at page 855; People v. Walker, 1948, 88 Cal.App.2d 265, 268, 198 P.2d 534. The jury could reasonably have inferred (and undoubtedly did) from Mary Ellen's testimony that she complied with defendant's demands because she reasonably feared her life would be endangered if she refused. He forced his way into her apartment at knife-point. While there he continued to wave the knife, which she thought had a blade 4-5 inches long. Defendant contends that Mary Ellen had a chance to flee while defendant was walking around the bed, and her failure to do so implies a willing consent. That she could have fled is a conclusion which the jury apparently refused to draw and that refusal is reasonable. The fact that she did not attempt to flee is not inconsistent with a reasonable fear that her life was in danger.

Defendant contends that since the jury acquitted him of the charge of assault with a deadly weapon the jury must have concluded that defendant was unarmed and therefore could not have induced fear. The verdict on the assault count did not necessarily constitute a determination that defendant did not have a knife. After reaching verdicts on the first two counts the jury requested that the court read the law on assault with a deadly weapon. The court then reinstructed that 'An assault with a deadly weapon is an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another with a deadly weapon.' A juror asked if it would be necessary to produce a weapon and was told no. In response to other questions, the court told the jury that if they found defendant had no intent to use the weapon as such, defendant should be found not guilty and that defendant could be found guilty on the first two counts, but not on the third. A jury then inquired as to the existence of evidence that defendant threatened to cut Mary Ellen. It is apparent that, from the discussion between the court and the jury and from the nature of the assult charged and as defined in the instructions, the jury could have reached their verdict on the basis of the lack of any intent to inflict an injury upon Mary Ellen. The jury may have so determined notwithstanding the fact defendant possessed a knife.

There is no evidence from which it could be held that as a matter of law Mary Ellen was a willing participant and hence an accomplice. It must be remembered that defendant denied being at the apartment at all. It is not a situation where admitting the act, the defendant claims that the woman participated willingly. Even in such case the question would not be one of law, but of fact for the jury. The jury was instructed properly that if it found her to be a willing participant, then she would be an accomplice and her testimony would have to be corroborated.

2. Sufficiency of Evidence.

Defendant's main contention on this subject is that Mary Ellen was an accomplice and her testimony was not corroborated. We have already answered this contention adversely to defendant. The evidence is sufficient to support the convictions on both the first and second counts. Entry into a home with intent to violate section 288a, Penal Code, is burglary under section 459, Penal Code. People v. Denningham, 1947, 82 Cal.App.2d 117, 185 P.2d 614. The element of intent must usually be inferred from the evidence, and when the evidence is sufficient to justify a reasonable inference that such intent existed the verdict may not be disturbed. People v. Henderson, 1956, 138 Cal.App.2d 505, 509, 292 P.2d 267. Defendant first attempted to talk his way into the apartment, then forced his way in at knife-point. These facts coupled with what he immediately proceeded to do is ample evidence that he entered the apartment for the purpose of committing a felony, to wit, violation of section 288a, Penal Code. The fact that the jury asked to be reinstructed on the law of assault after reaching verdicts on the first and second counts does not lead to the conclusion, as contended by defendant, that the jury violated the instructions on the law of accomplices and corroboration. It may be presumed in view of the court's full instructions on the subject that the jury determined under the facts that Mary Ellen was not an accomplice. See People v. Mastrantuono, 1948, 88 Cal.App.2d 178, 183, 198 P.2d 574; People v. Walker, supra, 88 Cal.App.2d 265, 268, 198 P.2d 534.

On the sex perversion count, if the jury believed the testimony of Mary Ellen (and it undoubtedly did) the evidence was sufficient to convict. See People v. Stewart, 1952, 109 Cal.App.2d 334, 240 P.2d 704, and People v. Peterman, 1951, 103 Cal.App.2d 322, 229 P.2d 444. It should be borne in mind on both counts, that Mrs. Hinderliter placed defendant at the Neptune Court at the crucial time, and that defendant denied...

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