People v. Erb

• Decision Date: 19 February 1968
• Docket Number: Cr. 2060
• Citation: 259 Cal.App.2d 159,66 Cal.Rptr. 274
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Chester ERB, Defendant and Appellant.

Page 274

66 Cal.Rptr. 274

259 Cal.App.2d 159

The PEOPLE, Plaintiff and Respondent, v. Chester ERB, Defendant and Appellant.

Cr. 2060.

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

Feb. 19, 1968.

Hearing Denied April 17, 1968.

William Andersen Dougherty, Tustin, Heinly, Hewitt, Rickles & Heinly, Santa Ana, for appellant.

Thomas C. Lynch, Atty. Gen., Los Angeles, James Don Keller, Dist. Atty. Gen., David B. Stanton, Deputy Atty. Gen., San Diego, for respondent.

COUGHLIN, Associate Justice.

Defendant was charged with the offenses of forcible rape and assault with intent to commit rape; was found not guilty of the former and guilty of the latter; appealed from the the judgment, which was affirmed by this court on July 8, 1965 (People v. Erb. 235 Cal.App.2d 650, 45 Cal.Rptr. 503); and petitioned the Supreme Court of California for a hearing, which was denied September 2, 1965. The remittitur thereupon issued has been recalled and our decision has been vacated to give further consideration to the effect of comments upon defendant's failure to testify in light of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

With the additions hereinafter noted, we adopt our former opinion filed herein on July 8, 1965. (People v. Erb, supra, 235 Cal.App.2d 650, 45 Cal.Rptr. 503.)

There is no doubt the jury would have found defendant guilty of the assault offense even though no comment had been made about his failure to testify. We have documented this conclusion in our former opinion. In addition, the record establishes beyond a reasonable doubt the comments did not play a substantial part in the prosecution's case; could not have had any effect upon the deliberations of the jury; and did not contribute to the verdict obtained. (Gen. see Chapman v. State of California, supra, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Modesto, 66 A.C. 725, 741--744, 59 Cal.Rptr. 124, 427 P.2d 788.)

In reality the sole issue for determination was whether or not the testimony of the victim should be accepted or rejected in whole or in part. Her testimony not only supports the conviction of the assault offense but is uncontradicted in this regard; is corroborated in part by statements of the defendant to the police and by his counsel to the jury; and also is corroborated by circumstances established by the uncontradicted testimony of other witnesses. Defendant, in a statement to the police, and his counsel in an opening statement to the jury, corroborated the fact the victim and defendant went to Long Beach and shared a dinner and dance date of the occasion in question; the route defendant selected to return home went through a deserted area and was different from that taken in going to Long Beach; on the way home defendant stopped the car in a desolate place; he returned the victim to her home; and thereafter, in response to inquiries from the police, related this course of events to them. Thus, any concern respecting the credibility of the victim's testimony is limited to that relating the events which occurred when defendant stopped his automobile. In his statement to the police he said he stopped and got out for the purpose of relieving himself; he did not rape the victim; and he did not have sexual intercourse with her. His denial to the police did not impeach the credibility of the victim's testimony to the contrary. Corroborating her testimony relating the assault was the fact upon arriving home she awakened Mrs. Helyi and told the latter what had happened; she was bruised about the arms and on the chin; these bruises were observed by Mr. and Mrs. Helyi, the police and a doctor pictures of the bruises were taken and introduced into evidence; Mr. Helyi received a telephone call from a man who identified himself as Chester Erb, indicating he may have raped the victim, offered drunkenness as an excuse, and extended his apology; the medical examiner testified he observed bruises upon the...