People v. Erb

• Decision Date: 09 March 1965
• Docket Number: Cr. 2060
• Citation: 43 Cal.Rptr. 111
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Chester ERB, Defendant and Appellant.

Page 111

43 Cal.Rptr. 111

The PEOPLE of the State of California, Plaintiff and Respondent, v. Chester ERB, Defendant and Appellant.

Cr. 2060.

District Court of Appeal, Fourth District, California.

March 9, 1965.

For Opinion on Rehearing, see 45 Cal.Rptr. 503.

Heinly, Hewett, Rickles & Heinly and William A. Dougherty, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

FINLEY, Justice pro tem. ^*

Appeal from the judgment entered upon a jury verdict finding defendant guilty of assault with intent to commit rape in violation of section 220 of the Penal Code. Appellant moved for a new trial which was denied. His motion for probation was likewise denied and his sentencing followed.

In an information filed by the District Attorney of Orange County on November 8, 1963, appellant was charged in two counts, first with violation of section 261, subdivision 3 of the Penal Code, Forcible Rape, and in Count II, with violation of section 220 of the Penal Code, Assault with Intent to Commit Rape. Arraignment was scheduled for November 8, 1963, but appellant failed to appear, whereupon he was adjudged in contempt of court. On December 24, 1963, the court found that appellant was incarcerated in Los Angeles County at the time of the original arraignment and the arraignment was rescheduled for January 3, 1964. On January 3, 1964, appellant once again failed to appear for arraignment. His counsel did appear, however, and the arraignment was reset to January 10, 1964, on which date appellant and his counsel both appeared. Appellant moved to dismiss the matter and a hearing on the motion was set for January 17, 1964. At that time, both appellant and counsel appeared and the motion to dismiss was denied. Appellant was then arraigned on the two counts charged in the information. He waived the statutory time and the case was set for trial on March 4, 1964 before a jury. The verdict was not guilty of the first count, forcible rape, but guilty of the second count, assault with attempt to commit rape, in violation of section 220 of the Penal Code. On March 26, appellant moved for a new trial, which motion was not granted. Probation was denied and appellant was sentenced to the state prison for the term prescribed by law, whereupon he filed notice of appeal.

The unrefuted evidence in the record is, in summary, as follows: On October 2, 1963, Miss Rita Lemieux, the prosecuting witness, was living in Pomona, California with Mr. and Mrs. Helyi (adopted in short for Szerdahelyi) and their two daughters. Miss Lemieux had recently arrived from Canada. She had obtained a job at a Hamilton Drug Store in Pomona and first met the appellant at the drug store where he was working as a janitor. Appellant offered to take her around to each of the other four Hamilton stores to meet the staff and later to have dinner. Miss Lemieux agreed that she would do this on her first day off, which which was October 2. For the date, she wore a Chinese style dress.

Appellant and Miss Lemieux drove through Brea Canyon and ended up in Long Beach. This was Miss Lemieux's first time out of Pomona. She was able to identify the road as the Brea Canyon because she saw signs on the road. Appellant told her, 'Tonight we will come back by the other way.' In Long Beach, he took her to the amusement park and they later went to dinner at the Silver Saddle restaurant. There she had one mixed drink and a couple of sips on the second one. She had some wine with dinner. After dinner appellant and Miss Lemieux drove around until they found a place for dancing called Hondo Brothers. They remained there from 7:30 p. m. until 12:30 a. m. While there, Miss Lemieux had two beers. While at Hondo Brothers, appellant tried to kiss her once but she refused. Shortly thereafter, they left for Pomona and Miss Lemieux was sitting over next to the car door. Appellant said, 'Come a little closer.' She accordingly moved to the middle of the seat. She was unable to identify or recall the streets they traversed on the way back toward Pomona. About 10 or 15 minutes after leaving Hondo Brothers, appellant made a left turn and started on a paved road. He drove about a quarter of a mile and stopped near a gate that had a sign on it, 'Closed.' It was a wire gate with diamond-shaped holes in it. Appellant stopped the car and got out. He walked behind the car and came over to Miss Lemieux's side of the car. He said, 'Let's have it,' and she replied, 'What?' He said, 'You know what I mean,' and she said, 'No, I won't.' He said, 'Come on.' She said, 'No, I won't I never did it before and I won't.' Appellant, having opened the car door, grabbed Miss Lemieux's clothes, pulled up her dress and ripped it on both sides. As appellant was attempting to pull up the dress, she was attempting to push him away with her hands on his chest. As she shoved him, appellant said, 'Don't,' and then said, 'Come on, come on.' The struggle continued. Appellant laid her down on the car seat. Her left hand was on the horn and steering wheel and her right arm was wedged between the seat of the car and her body. At this point appellant unzipped his zipper and took his penis out. Miss Lemieux continued the struggle but appellant got on top of her. She tried to protect herself by covering her private parts with her hands, but appellant tried to take her hands away. At this point, appellant hit her three or four times on the chin with his right fist. He stated, 'If you don't stop it, then I am going to kill you, I am going to hit you.' Miss Lemieux got dizzy but continued to struggle. Appellant got out of the car, grabbed her around the legs and pulled her outside of the car. She bumped her head on the step and then on the ground. She fell on gravel and injured her arm.

Miss Lemieux stated that she was finally able to get back on the seat of the car. Appellant again pushed her back on the seat and succeeded in getting on top of her. She stated that her hands were beside her body; appellant was holding them with his knees on her hands; according to her there was a penetration; she continued to fight him. Appellant then drove her home and on the way stated, 'If you are pregnant, I will marry you and I will have your family brought down here. I will buy you a house.' When Miss Lemieux arrived home she saw Mr. Helyi and asked to speak to Mrs. Helyi. She reported to Mrs. Helyi what had happened.

On October 3, in the afternoon, Miss Lemieux visited a doctor, who examined her. The doctor found evidence of the struggle from bruises on her arms and a contusion of the chin which appeared as though she might have been struck. The doctor concluded, however, that penetration had probably not occurred under the circumstances as she described them to him. However, his examination did reveal abrasions just inside of the labia, or lips of the vagina.

The doctor reported the incident to the police and the police arrived at Miss Lemieux's home October 4. Photographs were taken by the police officers of bruises resulting from the blows she had received during this incident.

On the morning of October 3, Mr. Helyi received a series of three telephone calls. The first call was at approximately 7:30 or 8:00 a. m. The caller, apparently a male voice, stated that he wished to speak to Miss Lemieux and Mr. Helyi called her to the telephone. In the second call, a voice said, 'I am a friend of Chester Erb.' Mr. Helyi said, 'I don't discuss the matter with anybody through the phone,' and hung up. The third call came about five minutes after the second, and the voice of the caller began by stating, 'I am Chester Erb.' Continuing, the voice stated, 'I am the guy who took Rita out last night' and then the voice stated that he would like to apologize for what happened. He said that he was drunk and could not recall what had happened; that he did not know whether he had raped the girl or not. Mr. Helyi declined the voice's offer to come to the house and said, 'I don't discuss this matter,' and then hung up. So far as he knew, he had never heard the voice prior to this telephone call.

The investigating officer, Robert Rodriguez, a police officer of the City of Pomona for 11 years, stated that he went into the Chino area with Miss Lemieux and her landlady. They were not able to identify the exact scene of the alleged offense at that time. The officer contacted appellant on October 7 at the Hamilton Drug Store in Pomona. Appellant made certain statements freely and voluntarily, without any coercion or threats. He stated that he had taken Miss Lemieux out to dinner and he had made a stop in the Carbon Canyon area, but he denied having attempted to molest her. He directed the officer to a spot on Carbon Canyon Road at the intersection of Valencia where he said he had stopped. That particular spot is in Orange County. There was no gate visible at that spot. Later the officer talked to Miss Lemieux and she stated that they had parked near a gate across the road. The officer then continued north on Valencia two or three miles until he came to a location with a gate. The gate was open during the day. It was a chain link type gate.

On October 30, Miss Lemieux and Mrs. Helyi went with Officer Willie Edward Stansbury to the gate on Valencia Road at the entrance to the Olinda Disposal Station, operated by the County of Orange and located within the county. This gate is a large chain link type that swings back and forth. It is approximately two to two and a half miles from the intersection of Carbon Canyon and Valencia. The area is devoid of homes and businesses. The road is paved but in poor condition. Miss Lemieux stated that this was the location where the attack occurred.

Appellant urges the following points for reversal:

1. That he was denied his right to be indicted by the grand jury as guaranteed by the Fifth Amendment to the...