People v. Delgado

• Citation: 32 Cal.App.3d 242,108 Cal.Rptr. 399
• Decision Date: 09 May 1973
• Docket Number: Cr. 5708
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Gallego DELGADO, Defendant and Appellant.
• Court: California Court of Appeals

Page 399

108 Cal.Rptr. 399

32 Cal.App.3d 242

The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Gallego DELGADO, Defendant and Appellant.

Cr. 5708.

Court of Appeal, Fourth District, Division 2, California.

May 9, 1973.

[32 Cal.App.3d 245] Burleigh Brewer, Newport Beach, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and A. Wells Petersen and Jon F. Farrell, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Acting Presiding Justice.

By amended information, defendant was charged with assault with intent to rape (count 1, Pen.Code, § 220), assault by means likely to produce great bodily injury (count 2, Pen.Code, § 245(a)), oral copulation (count 3, Pen.Code, § 288a), and attempted forcible rape (count 4, Pen.Code, §§ 663, 664, 261, subd. 2). In connection with the charge of attempted rape (count 4), it was specially alleged that defendant intentionally inflicted great bodily injury on the victim (see Pen.Code, § 264). Additionally, it was charged that on or about December 28, 1970, defendant was previously convicted of assault with intent to rape and forcible rape.

On the date of trial, prior to selection of the jury and outside the presence of prospective jurors, defendant admitted the prior convictions and moved the court for a ruling that the prosecution not be permitted to show the prior convictions for impeachment purposes should defendant take the stand. Defendant's motion was denied, and the case proceeded to jury trial. Defendant was found guilty on all counts as charged except for the special allegation of intentional infliction of great bodily injury, which the jury found not true. Defendant was sentenced to prison for the term prescribed by law on each count, the sentences to run concurrently with each other but to run consecutively to the sentence imposed with respect to the prior convictions. ¹ Defendant appeals from the judgment of conviction.

The Facts

The evidence of defendant's guilt is overwhelming, and he correctly does not challenge its sufficiency. Nevertheless, we deem it appropriate to set forth a brief re sume of the facts. The 23-year-old victim left a restaurant in Santa Ana about 2:30 a.m. on February 19, 1972 and started walking home. She lived approximately a mile away with her parents. She suffered from epilepsy and, thus, could not drive an automobile. She had walked this route many times. There was very little traffic and she saw no one else walking on the street. As she came to a somewhat unpopulated area, a stationwagon approached facing her. It slowly passed, then stopped and backed up. Defendant was the driver. He was alone. He offered the victim a ride. She was apprehensive and continued walking down the street. The car continued backing up alongside of her. The victim looked at the license number of the vehicle and memorized it. She shortly thereafter wrote the license number (RFM 562) on the palm of her hand. She also got a good look at defendant who was at one point approximately six feet away.

The victim started running in the same direction she had been walking. Defendant stopped his vehicle and got out. He started chasing the victim, leaving his car parked in the middle of the street. The victim ran across the street near an open field where defendant caught her. Defendant grabbed her upper arm and held her face approximately eight inches from his. She cried, 'Please don't' and tried to pull away. At that moment another vehicle stopped nearby. Defendant let go of the victim, ran back to his vehicle and drove away.

The victim kept running. Defendant made a U-turn and again approached the victim, stopping approximately 30 feet from her. She kept running and again crossed the street where defendant caught her a second time. He dragged her under a wooden fence into a field. He hit her in the face several times causing blood to flow, tore off her stockings, knocked her down and, over her protestations and struggling, attempted to have sexual intercourse with her. Unsuccessful in this attempt, defendant performed an act of oral copulation upon the victim. Thereafter he continued striking her and tore off her brassiere. Unsuccessful in his attempts to have sexual intercourse with the victim, defendant masturbated and left the victim lying on the ground. A passing motorist stopped and called the police who took the victim to a hospital.

The victim reported to the police the description of defendant's vehicle and the license number she had memorized and written down on her palm. The automobile and license plate were defendant's, and, in a statement made by him after being advised of his constitutional rights, defendant stated that he and he alone had driven the automobile on the night in question. In addition, the victim positively identified defendant as her assailant, both in court and in a pretrial photographic identification.

The defense was alibi. It consisted entirely of the testimony of defendant's wife. She testified that she was home sleeping and awoke at 1 a.m. Defendant was not then at home. The wife went back to bed, was trying to go back to sleep and may have dozed. Eventually, defendant arrived home. The wife thought he arrived prior to 2 a.m., but she could not be certain of the time. Although defendant's breath smelled of alcoholic beverages, he was not disheveled, dirty or bloody.

Pretrial Ruling on Admissibility of the Prior Convictions for Impeachment Purposes

Defendant contends that his conviction must be reversed because of the court's pretrial ruling that should he take the stand to testify, the fact that he had suffered the prior convictions could be proved by the prosecution for impeachment purposes. Analysis of defendant's arguments reveals that, under this head, defendant's contentions are really two. First, the probative value of the prior convictions for impeachment purposes was substantially outweighed by the probability that their admission would create substantial danger of undue prejudice, and the trial court, therefore, abused its discretion in ruling the prior convictions admissible. (Evid.Code, § 352; ² People v. Beagle, 6 Cal.3d 441, 453--454, 99 Cal.Rptr. 313, 492 [32 Cal.App.3d 248] P.2d 1.) Second, the court's ruling had the practical effect of preventing defendant from testifying in his own defense, thus depriving him of a fair trial (due process of law). We deal first with the abuse of discretion argument.

It is correct, of course, that in People v. Beagle, Supra, 6 Cal.3d at pp. 451--454, 99 Cal.Rptr. 313, 492 P.2d 1, the California Supreme Court held that the discretion vested in the trial court by Evidence Code, section 352 extends to evidence of a witness' prior felony conviction permissibly admissible under Evidence Code, section 788. Quoting form Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 940--941, ³ the Beagle court enumerated several of the more important factors to be considered by the trial court in exercising its discretion: (1) whether the prior conviction was based upon dishonest conduct or conduct of a violent or assaultive nature; (2) whether the prior conviction was recent or remote in time; (3) whether the prior conviction was for the same or substantially similar conduct as that presently charged; and (4) the possibility that the defendant will choose not to testify out of fear of being prejudiced as compared with the importance of the jury's having defendant's version of the facts. (6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) In enumerating these factors, however, the court was careful to state: 'We do not purport to establish rigid standards to govern that which in each instance must depend upon the sound exercise of judicial discretion.' (6 Cal.3d at p. 453, 99 Cal.Rptr. at p. 320, 492 P.2d at p. 8.) Thus, it is clear that it was not the intention of the court in Beagle to circumscribe the exercise of the trial court's discretion with a set of immutable formulae but, rather, to set forth guidelines to assist the trial court in exercising its discretion under Evidence Code, section 352.

The duty imposed upon the trial court by Evidence Code, section 352 is, upon timely request, to weigh 'probative value' against the 'probability . . . of undue prejudice' and to exclude evidence only when 'probative value is substantially outweighed by . . . substantial danger of undue prejudice.' To understand and correctly apply the guidelines set forth in Beagle, it is necessary to understand what is meant by the terms 'probative value' and 'danger of undue prejudice'. We are enlightened by the discussion of the meaning of these terms in People v. Schader, 71 Cal.2d 761, 774--775, 80 Cal.Rptr. 1, 457 P.2d 841. 'Danger of undue prejudice' is the easier of the two to understand. In the context of a criminal trial, it refers to a likelihood 'that a jury will be led astray and convict an innocent man because of his bad record.' (People v. Schader, Supra, 71 Cal.2d at p. 774, 80 Cal.Rptr. at p. 9, 457 P.2d at p. 849.) 'Probative value' is more complex. Its chief constituents are materiality, relevance and necessity. (People v. Schader, Supra.) Thus, how much 'probative value' proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality, and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity). (People v. Schader, Supra, 71 Cal.2d at p. 775, 80 Cal.Rptr. 1, 457 P.2d 841.)

Thus, the guideline factors mentioned in Beagle are seen to be only specific examples or applications of the general considerations involved in the exercise of the court's discretion pursuant to Evidence Code, section 352. That a prior conviction was based...