People v. Fain

• Citation: 75 Cal.Rptr. 633,451 P.2d 65,70 Cal.2d 588
• Decision Date: 13 March 1969
• Docket Number: Cr. 11889
• Court: United States State Supreme Court (California)
• Parties: , 451 P.2d 65 The PEOPLE, Plaintiff and Respondent, v. William Archie FAIN, Defendant and Appellant.

Page 633

75 Cal.Rptr. 633

70 Cal.2d 588, 451 P.2d 65

The PEOPLE, Plaintiff and Respondent, v. William Archie FAIN, Defendant and Appellant.

Cr. 11889.

Supreme Court of California,

In Bank.

March 13, 1969.

As Modified on Denial of Rehearing April 9, 1969.

Robert Y. Bell, Santa Rosa, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Charles P. Just, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant William Archie Fain appeals from a judgment entered upon jury verdicts convicting him of first degree murder (Pen.Code, § 187), three counts of forcible rape (Pen.Code, § 261), ¹ one count of forcible sex perversion (Pen.Code, § 288a), two counts of kidnaping (Pen.Code, § 207), and one count of attempted kidnaping (Pen.Code, §§ 663, 207). In the penalty proceeding the same jury fixed the punishment at death. This appeal is automatic. (Pen.Code, § 1239, subd. (b).) We affirm the judgment as to guilt but, under compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, we reverse as to penalty.

At dusk on June 19, 1967, high school students gathered in Dorado Park in Oakdale to sign each other's yearbooks. About 9 p.m. a classmate took Diana and Cathy to Diana's house, and a short time later another friend took the girls to the outskirts of town where they joined other classmates for a party. About midnight the girls resolved to return to Diana's house, where Cathy was to spend the night, and Mark Ulrich volunteered to drive them into town. The three were proceeding toward town when a car, its lights blinking on and off, approached Mark's car from the rear. Believing a friend Jim, who had attended the party, was behind him and signaling for him to stop, Mark pulled over on the shoulder of the road, spepped out of his car, and walked toward the other car, which had halted immediately behind his own. The driver of the other car, a stranger to Mark, likewise got out of his car, walked toward Mark, and killed him with a shotgun blast fired at short range.

The stranger then ordered the two girls out of Mark's car and into his, and after driving the girls around the countryside for some time stopped in a remote field away from town. At gunpoint he ordered the girls to disrobe. Cathy asked him what he planned to do and he replied, 'What do you think?' He first assaulted Cathy and then Diana; in both cases he accomplished penetration, and also effected an act of oral copulation on Diana. After the assaults, he told the girls to dress, and admonished them not to forget anything, mentioning in particular their shoes. He allowed the girls to go but warned them, if they looked back, he would kill them. About 2:15 a.m., and more than six miles from the point of their release, the girls arrived at a farmhouse and summoned the police.

Two passing motorists discovered Mark's body within minutes of the time he was shot; one had two-way radio equipment, and he notified the Oakdale police and called for an ambulance. The roadside commotion had already aroused the interest of Harvey Magers, a high school student, who had been sitting in his car, waiting for his brother to return home. He had observed two cars proceed rapidly down the road, as though they were racing, with the rear car blinking its lights. He watched the two cars stop, heard a 'popping noise,' heard one car dash off, and, as it passed near him, noted it was a whitish 1959 Ford. Shortly thereafter he saw the two motorists stop, his brother also stop, and the police and ambulance arrive. At this point Harvey realized something serious had occurred, went to the scene, less than a quarter mile from where he had been waiting, and related his observations to the police.

About 2:30 a.m. Officer Jones spotted a light 1959 Ford parked in front of 310 East 'D' Street in Oakdale, just half a block from the police station. He shined his flashlight into the car, and noticed an expended shotgun shell lying on the floor. Upon reporting this finding he was instructed to keep the vehicle under surveillance. As the investigation unfurled, officers developed further information strengthening their belief that the Ford was the vehicle involved in Mark's death, and learned that it belonged to defendant.

About 4:30 a.m. Sergeant Johnson returned to Oakdale with the girls. Officers then prepared to arrest defendant. As four officers went to the front door at 310 East 'D' Street, others surrounded the house. Sergeant Hall knocked on the door and, in response to an inquiry from within, informed the occupant it was 'the Sheriff's Department, please come to the door.' A woman came to the door, the officers identified themselves, and requested permission to enter. The woman, the wife of defendant's cousin, gave her permission, whereupon the officers made a quick search of the house. Sergeant Johnson located defendant asleep on a sleeping porch toward the back of the house; he placed his revolver against defendant's head and said, 'Sheriff's Office, don't move.' Sergeant Hall then asked if he was William Archie Fain, and defendant said 'yes.' He next asked, 'Where is the gun?' and defendant replied, 'under the couch.' After removing the shotgun, Sergeant Hall formally advised defendant he was under arrest.

At trial the People developed a compelling case against defendant on the accusations growing out of the events on the night of June 19. In his own defense defendant claimed he was otherwise occupied on the night in question. No witnesses substantiated his alibi, however, and it could not withstand the crushing force of the People's presentation. Since defendant does not dispute the sufficiency of the evidence, we limit our discussion to a few examples illustrating the nature of the evidence against defendant.

In the course of the investigation officers found expended and unexpended shot gun shells in defendant's car, unexpended shells in his pants, and expended shells in the field where Cathy and Diana were assaulted. David Q. Burd, a criminologist with the state Bureau of Criminal Investigation and Identification, conducted extensive tests with defendant's shotgun, and the tests showed, beyond any doubt in his professional judgment, that the expended shells found in the field had been fired by defendant's shotgun. Pellets removed from Mark's body were of the same kind as those in the shells in defendant's possession; in addition, a piece of plastic wadding found at the site of the killing was, according to Mr. Burd, from the same type of shell. Diana recalled, once inside the police station, that her assailant wore a necklace, subsequently found in defendant's room under his mattress. Diana had also left a beach towel in the Ford, and both girls remembered seeing a loose pair of shoes in the back of the car; investigating officers found both the towel and shoes similar in appearance in defendant's car. Finally, both girls identified defendant and his car in court.

Defendant was also convicted of raping a Mrs. Hayes and attempting to kidnap a Mrs. Workman. Again, defendant does not here assert that the evidence is insufficient on either count, and hence we do not set forth the record in minute detail.

About 1:15 a.m. on June 16, four days before Mark was killed, Mrs. Hayes was driving toward Riverbank, a small community not far from Oakdale, when her car ran out of gas. As she pondered her predicament, defendant stopped and asked if she needed assistance. She accepted his offer of a ride into town; instead of driving into Riverbank, as she expected, defendant soon left the highway, turned onto a secondary road, and then into a field. When she resisted his sexual advances, he threatened to kill her; he overcame her resistance, and achieved penetration. Following the assault, defendant drove her toward Riverbank; when he came to a stop at an intersection, she escaped. She left some of her clothes, including her shoes, in the car. She walked into a police station but, at that time, declined to report the crime out of concern for the embarrassing effect any publicity might have on her children. After Marks's death, she saw defendant's picture in the local paper, consulted with her husband, and decided her duty as a citizen required her to report the incident. She had spent about an hour in defendant's presence, and identified him in court.

The incident involving Mrs. Workman occurred several days earlier. Just past midnight on June 9, she was driving home upon completion of her factory shift. She and a neighbor, who worked on the same shift, customarily followed each other home. This precaution was adopted that night, although Mrs. Workmen had a considerable lead. A car previously observed by her suddenly came upon her, dimmed and shined its lights, and attempted to force her off the road. A man later identified as this defendant succeeded in bringing her to a stop, got out of his car with pistol in hand, and ordered her out of her car, threatening to kill her if she did not. Knowing her neighbor would soon appear, Mrs. Workman did not heed defendant's command. When the headlights on her neighbor's car came into view, defendant drove off at a high rate of speed. Mrs. Workman immediately reported the incident to the sheriff's office. She had a clear view of defendant in the light of the headlamps, remembered certain distinguishing features about his car, and identified him in court.

On each of these last two counts, defendant testified he was in bed by 11 p.m. on the nights in question. His account of his activities on each day was subjected to devastating impeachment, however, and it is hardly a matter of surprise that the jury disbelieved him.

Defendant complains that the trial court should have severed the two counts involving Mrs. Hayes and Mrs. Workman from the other counts involving the night of June 19. Trial counsel, however, did not move for...