People v. Diggs
| Citation | 223 Cal.Rptr. 361,177 Cal.App.3d 958 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. James Steven DIGGS and Richard Ernest Colbourn, Defendants and Appellants. Crim. 12485. |
| Decision Date | 24 February 1986 |
| Court | California Court of Appeals |
Joseph L. Staats, Sacramento, under appointment by the Court of Appeal, for defendant and appellant James Steven Diggs.
Krech & Cole and Richard J. Krech, Oakland, for defendant and appellant Richard Ernest Colbourn.
John K. Van de Kamp, Atty. Gen., Robert D. Marshall, Supervising Deputy Atty. Gen., and Michael T. Garcia, Deputy Atty. Gen., for plaintiff and respondent.
In this case, we must reverse the judgment because both defendants were prejudiced by a bizarre, incompetent closing argument made to the jury by defendant Colbourn's counsel. In an unpublished portion of the opinion, for the benefit of the trial court on retrial, we consider and reject certain other claims of error asserted by defendants.
The People's evidence was as follows:
At approximately 8 p.m. on February 16, 1982, the victims in this case, Kathy R. and Kristen B. wanted to visit a friend and began hitchhiking in Sacramento. They were picked up by a vehicle occupied by defendants Diggs and Colbourn, and Colbourn's brother. At Kristen's request, they stopped to buy a six-pack of beer and cigarettes.
Defendants then drove to a friend's house, where Colbourn took a syringe out of the dashboard. Defendants went into the house while the women waited in the car for about 20 minutes.
Defendants returned to the car and, after stopping at a gas station to let Kathy go to the bathroom, they drove about 20 minutes to defendant Colbourn's mobile home.
There, the two women listened to music, drank beer, smoked marijuana, and talked with defendants and Colbourn's two brothers. Kathy asked to be taken home when one of the Colbourn brothers asked her how big her bust was. Defendants and the two women then left in a vehicle driven by Diggs.
Kathy demanded to be taken home. However, Diggs ultimately drove the car to a remote area. On the way, Diggs obscenely threatened the women with harm if they did not engage in various sexual acts. At one point, Colbourn grabbed Kathy's crotch and slapped her when she would not further cooperate.
Kathy was let out of the car to go to the bathroom and ran into the darkness. Kristen tried to get out of the car, but defendants would not let her. The three drove to a very isolated area.
There, defendants forcibly removed Kristen's clothes.
With Colbourn's help, Diggs tried to rape Kristen but was unable. Defendants tried to make Kristen orally copulate Diggs, but she refused; Diggs orally copulated her.
Thereafter, defendants tried to make Kristen orally copulate Colbourn on four occasions, but each time she refused.
Diggs succeeded in raping Kristen once; Colbourn did so twice. Kristen was crying. Colbourn struck her when she refused to orally copulate him.
Finally, Diggs announced that he needed to leave because he had a court appearance in the morning. Diggs turned the car around and drove into a ditch.
Colbourn wasn't finished with Kristen and wanted to stay until morning. Diggs left on foot to procure aid. While he was away, Colbourn again tried to make Kristen orally copulate him. She refused, pushed him away, and got into the front seat where she put on her clothes. Colbourn again made advances but Kristen pushed him away and got out of the car. She ran to the nearest driveway. Colbourn caught her, hit her on the side of the head and pulled her by the hair back to the car.
Diggs returned and, at Kristen's suggestion, all three went toward the houses on the road for help with the car. Diggs gave Kristen his jacket and apologized, stating "he had done something wrong, that he regretted it."
The three went to the house of Benjamin D. Diggs and offered him twenty dollars to pull the car out of the ditch, or in the alternative, to call a tow truck. Benjamin D. said he would call a tow truck and closed the door. In fact, he called the police.
When Benjamin D. opened the door again Kristen said, Kristen grabbed onto a porch railing. Benjamin D. saw Colbourn hit Kristen in the head and stomach a number of times. Diggs and Colbourn could not get Kristen to let go and left. Benjamin D. then let Kristen into the house.
Diggs and Colbourn contacted another nearby resident, Virgil P., who agreed to help them tow out Colbourn's car. As they approached their vehicle a sheriff's vehicle was parked nearby. Diggs and Colbourn told Virgil P. they didn't want to speak to authorities and requested to be taken to a phone to call a tow truck.
Headlights followed Virgil P's vehicle. Diggs and Colbourn got out of the car quickly and ran. 1
Kristen was taken for a medical examination. It disclosed a bruise on the shoulder; tenderness, redness and swelling on the right side of the head; scrape on the left hip; four red marks on the back; tenderness of the jaw; and trauma-caused redness of the external genitalia. Semen was found in her vagina.
Diggs testified in his own behalf. His version of the events did not differ significantly until the four left Colbourn's home in the vehicle driven by Diggs. Colbourn suggested that they go to Rio Linda, so they would not have to worry about being harassed by anybody. This suggestion drew no objection from either Kathy or Kristen.
Diggs continued driving towards Rio Linda for thirty minutes. In the course of the trip all four occupants of the vehicle were drinking beer and smoking marijuana. Upon reaching Rio Linda, Diggs parked the car because he was tired of driving around. He backed up the vehicle into a cattle shute to keep the car out of the path of oncoming traffic.
As they sat in the vehicle drinking, Kathy left to relieve herself and was gone about five minutes. Kathy got back into the car and began kissing Colbourn. Kristen, meanwhile, told Diggs that she liked him and wanted to be with him, and said, "Maybe we can get something together." Kathy then said that she had to relieve herself again. She gave Colbourn a kiss that lasted twenty or thirty seconds and then got out of the car and did not return.
Diggs, concerned about Kathy, drove slowly around the area, looking for her, then returned to the original parking place. Diggs, Kristen, and Colbourn waited another 15 minutes for Kathy and left. At a place approximately two and a half miles from the original parking place, Kristen asked Diggs to pull over and said, "Why don't you have [Colbourn] ... get out of the car so we [can] be by ourselves." After Colbourn left, Diggs and Kristen got undressed. They then engaged in consensual sexual intercourse for five minutes. Diggs testified that he and Kristen did not orally copulate each other and that he never threatened Kristen. At no time did Kristen exhibit any resistance to Diggs.
After completing the act of intercourse Diggs and Kristen dressed. Colbourn returned to the vehicle and Diggs took a walk for five minutes and returned.
Diggs had no knowledge of what, if anything, occurred while he was away.
Diggs admitted that Colbourn slapped Kristen in front of Benjamin D.'s house but did so to calm her down, because, although she was fine at the car, she had "just flipped out."
Diggs also admitted telling Virgil P. to avoid a sheriff's car but did so because he was late in paying a traffic fine and had other traffic violations.
Colbourn's defense is discussed later in the opinion.
Defendants were charged in a multiple count information with the following offenses against Kristen: kidnapping (Pen.Code, § 207--count 2); 2 oral copulation by force, in concert 288a, subd. (d)--count 3); four counts of attempted oral copulation by force, in concert (§§ 288a, subd. (d), 664--counts 4, 5, 7 & 10); and three counts of rape, in concert (§§ 261, subd. (2), 264.1--counts 6, 8 & 9). Colbourn was also charged with assault with intent to commit rape against Kathy. ( § 220--count 1).
On count I Colbourn was convicted of the lesser included offense of simple assault. Both defendants were convicted on the remaining counts as charged. Each defendant was sentenced to a total unstayed term of seventeen years and six months in state prison. 3
Defendant Colbourn contends the judgment must be reversed on all counts because his retained counsel, Howard Welch of Auburn, provided legally ineffective assistance of counsel, most particularly in Welch's closing argument to the jury. 4 Defendant Diggs contends Welch's ineffectiveness prejudiced him to the extent that the judgment as to him must be reversed as well. Regrettably, we must agree with these contentions.
We turn first to the testimony of defendant Colbourn that set the stage for the closing argument in question. 5
On direct examination, 6 attorney Welch first referred to the syringe that Colbourn had taken out of the dashboard of the car and asked Colbourn to "explain what happened then in that respect because it has been discussed and clarify it." Colbourn "clarified" the point by testifying that he had delivered marijuana to his friend's house in a trade for amphetamines and that, while in the house, with the women waiting in the car, he had injected himself with amphetamine.
Welch then elicited testimony that everyone in the car drank beer traveling from his friend's house to Colbourn's mobile home. At the trailer, defendant drank more beer. Describing the effect of the beer and amphetamine, defendant testified "you just kind of are at a level, not really up or down, so you are at a space level like." Also, "I was pretty loaded."
Welch then asked Colbourn, "Was there any resistance on the part of [Kristen] to your aggressive sexual attitude that you may have had?" and defendant answered, "No, there...
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