People v. Greene

Decision Date15 October 1973
Docket NumberCr. 10427
Citation110 Cal.Rptr. 160,34 Cal.App.3d 622
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Rick Allen GREENE, Defendant and Appellant.

Gregory C. Dyer, Mill Valley, for appellant (under appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., William E. James, Asst. Attys. Gen., Gloria F. DeHart, Rodney J. Blonien, Dep. Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from an order committing him as a mentally disordered sex offender 1 (Welf. & Inst.Code, § 6316; and see Pen.Code, § 1237) following a jury trial in which, after suffering five admitted prior similar convictions, he was found guilty of annoying and molesting Linda M., a child under the age of 18 years, in violation of section 647a of the Penal Code, guilty of the same offense with respect to Terese S., guilty of assault of Linda M. with intent to commit rape in violation of section 220 of the Penal Code, and guilty of simple assault of Terese S. in violation of section 240 of the Penal Code, a lesser and included offense to that of assault with intent to commit rape, with which he was charged. He does not attack his commitment but alleges that the convictions on which it is based (cf. fn. 1 above) should be reversed or modified as follows: (1) since the conviction of assault with intent to commit rape and simple assault involve the same acts as the other offenses of which defendant was convicted they should be stricken from the record because they subject him to double punishment in violation of section 654 of the Penal Code; (2) the conviction of assault with intent to commit rape should be reduced to simple assault because there is insufficient evidence that defendant had the intent to commit rape; (3) the two convictions involving Linda M. should be reversed because the court erred in permitting the victim to identify the defendant after it was demonstrated that she was first shown an impermissibly suggestive photograph; and (4) all four convictions should be reversed because the court erred in admitting evidence of prior offenses.

An examination of the record in the light of applicable provisions of law reflects (1) that there was no error in admitting evidence of the prior offenses because evidence of similar prior conduct was properly received to show the identity, and the motive and intent of the perpetrator of the present offense; (2) that there was no error in admitting the identification testimony of Linda M. because there is evidence to support the trial court's finding that her identification of her assailant was independently derived from her observations at the time she was assaulted; (3) that the evidence fails to support the jury's implied finding that the defendant had the intent to engage in sexual intercourse by force or violence with Linda M. at the time he assaulted her and the conviction should be reduced to simple assault; and (4) that the defendant was properly convicted of the four offenses as so modified, and that since his commitment does not involve sentencing, his complaint regarding double punishment is premature. Defendant's convictions must be modified to reduce the conviction on the third count from assault with intent to commit rape (Pen.Code, § 220) to simple assault (Pen.Code, § 240), and as so modified the convictions and orders of commitment must be affirmed.

On June 4, 1971, at approximately 11:20 p.m., Terese S., a 15-year-old student at a high school in Saratoga, left a dance at school and walked with a girl friend one block to the latter's home. After standing inside the house for a few minutes, Terese proceeded to walk to her house two blocks away. Although there were no street lights in the area, the street was well lighted from nearby homes.

When Terese was approximately one block from her house, she noticed that a boy was 'kind of like jogging' behind her. The boy, whom she identified in court as defendant, came up along her left side and stated that he wanted to talk with her for five minutes. Terese glanced at him and stated that she was sorry but she could not talk as she had to get home and her boy friend was waiting. Defendant pleaded with her to talk with him but she said 'No' and kept walking. She said she did not want to be rude, but she did not want to carry on a conversation.

The situation became embarrassing and Terese didn't known what to say, so she glanced at him and said 'Well, what's your name?' He replied 'Rick.' Some small talk ensued while Terese kept walking, and she finally ended up at her home. Defendant asked her once more to go with him but Terese said 'No' and turned to go. Defendant grabbed her and pinned her arm with one of his arms and shoved his other hand into her vaginal area. There was quite a bit of pain as defendant shoved her two layers of clothing into the vaginal area as well.

Terese could not get her hand free for about 30 seconds but finally freed it and began hitting defendant with a felt tip pen she had been carrying. This action enabled her to break away, screaming as loudly as she could from the pain. She then ran into her home.

Terese stated at trial that she had had a chance to look at defendant once when he came alongside her, maybe once when they walked, and all the time he was attacking her. She stated that he was about 5 7 or 5 8 and thin compared to her 154 pounds.

On June 30, 1971, at approximately 11 p.m., 16-year-old Linda M. of Cupertino was returning to her home from a babysitting job about three or four blocks away. She testified that on the way she saw a man walking towards her. Her identification of this person as the defendant was objected to at trial and is discussed below. Linda stated that there were street lights on and she got a good look at defendant's face two times.

As defendant walked up to Linda, he put his arm around her waist and turned her around. He said, 'Don't be afraid. I have a gun. Don't move.' Linda was startled and felt something hard in her side. Defendant kept his hand around her waist, and the two started walking. Linda put her right arm around defendant's waist after he told her to do so.

Linda asked defendant what he wanted. He said, 'I just want to play with you,' and he moved his hand up and down her waist a little. Linda tried to get away and said 'No, no.' Defendant told her to stop it and be quiet. She became quiet and then broke away, running into the home of some neighbors. The police were called and a Deputy Kasper arrived about five or six minutes later. On the basis of Linda's description, which was given under circumstances set forth below, Kasper determined that defendant was involved.

After this testimony, the district attorney made an offer of proof concerning four attacks defendant was alleged to have made on one Antoinette K. during November and December of 1969 and January of 1970. After a hearing in chambers on the degree of similarity between these incidents and those testified to by Terese S. and Linda M., Antoinette testified in court concerning these incidents. Defendant objected to this testimony as irrelevant and prejudicial. Since the propriety of allowing this testimony is challenged on appeal, it will be discussed below.

Defendant's mother testified for the defense and stated that he arrived home in Cupertino on the evening of June 30, 1971 (the night of the incident with Linda M.) at 11:15. A deputy, Ray Pantiga of the Santa Clara County sheriff's office, testified that when he was investigating the other attacks defendant was alleged to have made on a Miss K., defendant's mother told him that defendant had been at home watching television on the night that Miss K. was last attacked. Kasper had advised his sergeant, Mike Miller, to go to defendant's address on Barnhart Avenue. Miller drove by the premises that night and determined that defendant's car was not in the driveway. He did not check to see if defendant was home however.

I

The prosecution for all of the offenses against each of the two victims at the same time permitted the jury to consider, on the issues of identity and intent, the testimony of each victim in connection with the complaint of the other. Defendant concedes that since there was no motion for a severance he cannot complain of any prejudice which thereby resulted. (See People v. Van De Wouwer (1949) 91 Cal.App.2d 633, 639--640, 205 P.2d 693.) He insists, however, that it was an abuse of discretion to permit Miss K. to testify concerning the four occasions on which she was accosted by the defendant because there was a lack of similarity between the conduct of the person of whom Linda and Terese complained, and that of the defendant on the occasions to which Miss K. testified.

At the commencement of the trial, out of the presence of the jury, the defendant admitted that he had been convicted of five prior misdemeanor violations of section 647a of the Penal Code as alleged in the information. In the attendant discussion it was recognized that despite the admission the prosecution might desire to present evidence of prior similar offenses. The court instructed the prosecutor that he was not to refer to the prior offenses on the Voir dire of the jury, and that the admissibility of such evidence would have to be discussed at such time as it was offered. After the jury was selected and before the prosecutor made his opening statement, defense counsel sought an order directing the prosecutor to furnish her with official reports and statements concerning victims or witnesses of other offenses. Although the court indicated the request was not timely the prosecutor offered counsel the right to make copies of such statements as he had at the next recess in the proceedings. Apparently counsel did not take advantage of this opportunity...

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