People v. Dobson

• Decision Date: 23 November 1970
• Docket Number: Cr. 3969
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Carl DOBSON, Defendant and Appellant.

Page 443

91 Cal.Rptr. 443

12 Cal.App.3d 1177

The PEOPLE, Plaintiff and Respondent, v. Thomas Carl DOBSON, Defendant and Appellant.

Cr. 3969.

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

Nov. 23, 1970.

[12 Cal.App.3d 1180] Francis J. Maher, under appointment by the Court of Appeal, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Alexander B. McDonald, Deputy Atty. Gen., for plaintiff-respondent.

OPINION

COUGHLIN, Associate Justice.

In a four-count indictment defendant was charged with the offenses of assault with intent to rape Julie Ann Crosby, assault with intent to rape Irene Lamb, assault upon the person of Irene Lamb by means of force likely to produce great bodily injury, and unlawfully loitering on private property; by jury verdict was found guilty of the offense of assault with intent to rape Irene Lamb and not guilty of the other offenses; appeals his conviction; and seeks a reversal upon the grounds (1) the evidence is not sufficient to support a verdict of guilty, and (2) he was denied due process of law because the testimony of Irene Lamb identifying him as the person who assaulted her was the product of a constitutionally proscribed pretrial identification.

The contention the verdict of guilty is not supported by the evidence is premised on the claim there is no evidence showing an intent to rape. The manner of the assault, the circumstances under which it occurred, the fact the assailant pushed the victim down onto an automobile seat, the fact the assailant then pulled the victim up to him and when the latter said, 'I'm an old woman, what do you want from me,' his only response was to push her back down onto the seat, the fact the assailant made no attempt to steal the victim's purse or any other property, and the fact the assailant was attempting to choke the victim into unconsciousness support the conclusion the purpose of the assault was to rape. (People v. Nye, 38 Cal.2d 34, 37, 237 P.2d 1; People v. Collier, 113 Cal.App.2d 861, 868, 249 P.2d 72.)

At the trial Irene Lamb testimonially identified defendant as the person who had assaulted her. Defendant contends this in-court identification was tainted by a pretrial identification made under impermissibly suggestive circumstances constituting a denial of due process of law, and in support of his position, cites the decisions in Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199; and People v. Caruso, 68 Cal.2d 183, 187, 65 Cal.Rptr. 336, 436 P.2d 336. (See also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247.) However, defendant neither objected to the admission of the incourt identification nor requested a voir dire examination of the witness, before its admission, to show the existence of a constitutionally objectionable pretrial identification. A defendant has the burden of showing a pretrial identification is constitutionally objectionable. (People v. Caruso, Supra, 68 Cal.2d 183, 194, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Hawkins, 7 Cal.App.3d 117, 122, 86 Cal.Rptr. 428.) After the witness concluded her direct examination she was cross-examined by defense counsel who elicited testimony she had been shown photographs of some suspects five days after the offense had been committed, but was unable 'to pick out' the person who had assaulted her; and also elicited testimony she attended a preliminary examination two and one-half months later at which time she indicated to a Mr. Cox, apparently a member of the district attorney's staff, defendant 'was the man'. The foregoing testimony, which is the only evidence on the issue, does not support defendant's contention a constitutionally objectionable pretrial identification had been made. It should be noted there was no evidence a photograph of defendant was included among those shown the victim, Lamb. Thus, her testimony she did not identify the defendant at that time as the person who assaulted her is of no consequence. Likewise it should be noted the cross-examination testimony of the victim did not identify the preliminary examination she attended, give the reason for her attendance, or show defendant was present at or involved in the preliminary hearing. In any event, defense counsel did not move to strike or in any other manner question the admissibility of the in-court identification testimony of the victim.

Defendant's failure to object to the incourt identification forecloses any objection thereto on appeal. (People v. De Santiago, 71 Cal.2d 18, 22, 76 Cal.Rptr. 809, 453 P.2d 353; People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Rojas, 55 Cal.2d 252, 260, 10 Cal.Rptr. 465, 358 P.2d 921; People v. Hawkins, supra, 7 Cal.3d 117, 124, 86 Cal.Rptr. 428; People v. Short, 269 Cal.App.2d 746, 749, 75 Cal.Rptr. 156.)

On appeal defendant's argument he was denied due process of law relies upon facts not supported by the evidence. In his brief he asserts a photograph of defendant was included among those submitted by the police to the victim, Lamb; the preliminary hearing attended by the victim was the preliminary hearing on the complaint charging defendant with assault to commit rape upon Julie Ann Crosby; the...