People v. Blankenship

• Citation: 171 Cal.App.2d 66,340 P.2d 282
• Decision Date: 03 June 1959
• Docket Number: Cr. 6458
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William C. BLANKENSHIP, Defendant and Appellant.
• Court: California Court of Appeals

Page 282

340 P.2d 282

171 Cal.App.2d 66

PEOPLE of the State of California, Plaintiff and Respondent, v. William C. BLANKENSHIP, Defendant and Appellant.

Cr. 6458.

District Court of Appeal, Second District, Division 1, California.

June 3, 1959.

Rehearing Denied June 15, 1959.

William C. Blankenship, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Arthur C. DeGoede, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

The District Attorney of Los Angeles County filed an information wherein defendant was charged in one count with the crime of forcible rape (Penal Code, § 261, subd. 3), and in a second count with the offense of assault with a deadly weapon (Penal Code, § 245). The information also charged prior convictions of the crime of attempted kidnapping and rape and kidnapping. Defendant pleaded not guilty and admitted both prior felony convictions. Trial was had before a jury which found defendant guilty as charged in both counts. His motion for a new trial was denied and he was sentenced to state prison. From the judgment of conviction and the order denying his motion for a new trial, defendant prosecutes this appeal.

As to the factual background surrounding this prosecution, we regard the following as a fair epitome of the evidence presented by the prosecution. On the morning of April 1, 1958, at 11:00 a. m., Mrs. Diane Williams, a housewife, was at home in her apartment with her two children of the ages of four months and two and one-half years. Mrs. Williams' husband had departed earlier that morning for work. Answering a knock at her apartment door, Mrs. Williams was confronted by defendant who said that he represented an insurance company and inquired if she was Diane Williams. Upon receiving an affirmative answer defendant stated that a person of that name had been mentioned in a will and that his purpose was to ascertain whether she was the person therein named. Mrs. Williams testified: '* * * and I thought well, he knew my name so I'll let him in, and I opened the door and he sat in the chair next to the door, and I picked up the baby out of the bassinet and my other little girl and I walked over to the couch and sat down'. For a period of about forty-five minutes the defendant asked Mrs. Williams questions to which she gave answers which the defendant wrote down on lined paper in a black loose-leaf notebook. The defendant perspired during this period of conversation. He then asked Mrs. Williams to sign her name to a piece of paper so that her signature could be compared. She signed her name once or twice on some paper in the loose-leaf binder. The defendant then put his hand over her mouth and placed a knife at the right side of her throat and told her not to scream or make any kind of move or her baby, who was lying on the couch, would be killed. Mrs. Williams nodded her head and, when the defendant's hand was removed from her mouth, said she wouldn't scream and asked him what he was going to do. The defendant pulled the knife away from her throat a little bit and replied, 'You know what I'm going to do,' and told her to put the older girl, who was standing next to Mrs. Williams, in the bathroom. After some discussion the older child was put in the kitchen and the baby in the bassinet. The defendant finally consented to Mrs. Williams placing a contraceptive diaphragm in her person so that 'I wouldn't become pregnant'. The defendant followed her in her movements throughout the apartment, still holding the knife. He continually perspired and told her to hurry. They went into the front room and the defendant told her to lie on the floor. Mrs. Williams lay down, rigid and scared. He then unbuttoned her blouse and touched her breasts, raised her skirt, unzipped his pants, put the knife away and had sexual intercourse with Mrs. Williams. She allowed him this act of intercourse because she was in fear of her own life and safety and because she was in fear for the lives and safety of her children, one of whom the defendant had threatened to kill. The defendant tied Mrs. Williams' hands with twine and left the apartment. Within five minutes, and as she was untying her hands, a friend of the family, William Sweeney, knocked on the door. Mrs. Williams had gotten one hand loose and let him in. She screamed to him that she had just been attacked. Sweeney went out to look for the man but could not find him and then telephoned the police who arrived in about five or ten minutes. The police officers took Mrs. Williams to the Central Receiving Hospital at which place a vaginal smear was taken from her private parts. The smear contained spermatozoa.

A payroll card of the company for which the defendant worked was introduced in evidence. It indicates that the defendant was credited with eight hours of work on April 1, 1958 and that he had lost no time on that day. This card was prepared by the defendant. The defendant's supervisor, Harold Smith, indicated thereon that he approved the hours as recorded on the card.

In rebuttal, Harold Smith testified that it was not common practice to mark on the time card when someone in management, such as the defendant, takes an hour or so off during the day.

Defendant did not testify in his own behalf but presented evidence of an alibi and also in contradiction of some of the testimony offered by the prosecution. This testimony will hereinafter be referred to as we discuss the issues presented on this appeal.

As grounds for a reversal of the judgment and order herein, appellant contends:

'1. The evidence is insufficient to support the judgment in that:

'(a) There is insufficient evidence to support a finding that Mrs. Williams resisted her assailant or that her resistance, if any, was overcome by force or violence, or that she was prevented from resisting by threats of great and immediately bodily harm accompanied by apparent power of execution.

'(b) There is insufficient evidence to support a finding that the defendant was the person who attacked Mrs. Williams.

'2. The defendant was deprived of due process of law in that:

'(a) The deputy district attorney was guilty of prejudicial misconduct in withholding evidence favorable to the defendant.

'(b) He was not taken before a magistrate within the time required by law.

'(c) Evidence which was illegally seized was admitted at the trial.

'(d) The trial court indicated its sympathies lay with the prosecution.

'3. The trial court committed prejudicial error in admitting evidence which imputed of another crime.

'4. The trial court erred in its instructions to the jury in that:

'(a) It failed to give the defendant's requested instruction on evidence susceptible of different constructions.

'(b) It failed to give the defendant's requested instruction on the effect of false testimony.

'5. The trial court erred in failing to comment on the evidence.'

In his contention that the evidence is insufficient to sustain the judgment of conviction, appellant states that, 'he is not prosecuting this appeal on the grounds that Mrs. Williams was not attacked. Whether Mrs. Williams was attacked or not is of no consequence to appellant. Appellant raises the points on her behavior in that they reflect on her credibility as a witness and should be scrutinized by the court. Mrs. Williams may very well have been attacked. If so, her behavior and the events, she relates, during that hour and one-half in her apartment makes an incredible story.' In his claim that the testimony of the victim as to her 'behavior' not being that of a woman forced to comply with a demand for sexual intercourse but rather indicative of cooperation and willing participation in the act, appellant points to the fact that she used a contraceptive diaphragm and jelly, 'felt no shame', and that her attacker did not have to force her legs apart to gain entry.

It is not contended by respondent that there was any active resistance to the act of sexual intercourse. The victim herself testified that she permitted the act to be committed because she was in fear of her own life and as well for the lives and safety of her two children. Subdivision 4, Section 261 of the Penal Code is directly applicable to Count I of the information herein, which applies where the female is prevented from resisting 'by threats of great and immediate bodily harm, accompanied by apparent power of execution'. That the fears of the prosecutrix were reasonable is at once apparent when consideration is given to the testimony that her attacker had threatened to kill the youngest child while holding a knife at the mother's throat, unless she complied with his demands. And the knife was not put away until the act of intercourse was commenced. There was evidence that after holding the knife against the throat of his victim, appellant continued to keep the weapon out while following Mrs. Williams throughout the house. When the latter inquired of appellant as to what he was going to do, the latter replied, 'You know what I'm going to do.', at which time he continued to menace Mrs. Williams with the knife. Whether or not the evidence would have sustained a conviction under Subdivision 3 of Penal Code Section 261, we entertain no doubt that all of these circumstances and the acts and conduct of appellant constituted a very real threat to the complaining witness within the meaning of Subdivision 4, and that they more than sufficiently explain the absence of active resistance on the part of the victim. It requires no strain on the imagination to appreciate the plight of the prosecutrix herein. What would have happened to her at the hands of appellant, if she had pursued a course different than she did, is problematical.

Furthermore, in all cases, of which the instant one is typical, since there is an abundance of evidence in the record tending to show that the prosecutrix was frightened and terrified, it is always with the jury to say, where there is some...