People v. Hall, Cr. 33783

Citation157 Cal.Rptr. 107,95 Cal.App.3d 299
Decision Date24 July 1979
Docket NumberCr. 33783
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Dwayne Lamont HALL, Defendant and Appellant.

Joseph Shemaria, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Roger W. Boren and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

ALARCON, Associate Justice.

Defendant was charged in an information with violation of section 261, subdivision (2) and section 261, subdivision (3) of the Penal Code, rape, and violation of section 288a, subdivision (c), forcible oral copulation. Prior to trial, the People's motion to amend the information was granted, to allege a violation of Penal Code section 12022.7, the infliction of great bodily injury during the commission of the rape.

Defendant was tried by a jury and found guilty of both counts; the jury found that the allegation of infliction of great bodily injury was true.

Defendant was sentenced to state prison for a period of four years on count I, with an additional three-year enhancement for the great bodily injury finding. Defendant was sentenced to a term of three years in state prison on count II, that sentence to run concurrently with the sentence imposed on count I. Defendant has appealed from the judgment of conviction.

Contentions on Appeal

1. There was no good cause to justify excusing one of the regular jurors, and thus the substitution of the alternate juror was error.

2. The in-court identification of defendant was tainted by an unnecessarily suggestive one-person show-up. It was error to admit testimony concerning the pretrial and in-court identification.

3. The court erred in refusing to instruct the jury in the language of special instructions submitted by appellant concerning eyewitness identification testimony.

4. The court erred in allowing the prosecution to amend the information on the day of trial to allege great bodily injury.

5. The court erred in allowing counsel for the parties to stipulate to the testimony of Dr. Wong without first obtaining an express waiver from defendant of his constitutional right of confrontation.

Statement of the Facts

The victim, D.L., testified that she resides and is employed on the Island of Catalina. On April 16, 1978, at approximately 1:30 a. m., she returned to her home from the restaurant where she works. She traveled to her home in a small electric golf cart which she parked on the street. As she was stepping onto the sidewalk, defendant approached her and asked her if he could use her telephone to call either the shore boat or sheriff's station so that he could get back to his ship. She directed him to a nearby pay telephone and gave him change to make a phone call. Defendant said he had had too much to drink and asked if the victim would place the telephone call for him. The victim and defendant went to the victim's front door, and he asked if he could come in and use her bathroom. She consented, he entered the house and went into the bathroom. Her kitchen and living room lights were both on once they were inside the residence.

She testified that she had seen defendant fairly clearly on the street, but it was lighter inside the residence, and she got a better look at his face. Defendant came out of the victim's bathroom and asked for a glass of water, which she provided. She asked him if she should call the sheriff's station or the shore boat. After a brief discussion, defendant turned and faced the victim directly and said, "I want to make love to you." She asked him to leave and he responded, "You know, I can force you." He began to push the victim into another room, and she indicated that she would cooperate so that he would not hurt her. Defendant ordered the victim to undress and he then raped her and forced her to orally copulate him. During the incident, the victim had her eyes open and was watching defendant. He spoke to her during the rape.

When the sexual act was completed, the defendant said to the victim, "You know I have to kill you . . . . Because you will snitch." He then struck her with his fist in her left eye. He struck her on the face and temple with very hard blows, at least four times. The victim testified that she believes she lost consciousness. She sagged to the floor and defendant left. After she heard the front door close, the victim crawled to the telephone and called the sheriff's office. Deputy sheriffs arrived at her house within two minutes.

The victim testified that she gave the following description of defendant to the sheriffs: approximately 5' 10 tall, 170 pounds, black, wearing bluejeans, a light shirt, a khaki-colored fatigue jacket, and a navy blue or black knitted watchcap. The victim was taken by ambulance to the hospital and treated. A cut over her left eye was sutured, and she was informed that she had a cracked rib; she had numerous facial bruises, and her left eye was swollen shut. She testified that her left eye remained closed for approximately five days, and at the time of trial she continued to have a problem with blurring and double vision in the left eye.

From the hospital, she was driven by some friends to the sheriff's station. She remained seated in her friends' van, and the sheriff's deputy brought a man out onto the street and asked her if she could identify him. She arrived at the sheriff's station at approximately 2:30 a. m., about an hour after the offense. Defendant stood approximately eight to ten feet from the van; she could not tell whether he was handcuffed. She testified that the lighting was not very good. She could see that he matched the general description of the man who had assaulted her. He was wearing the same clothing, although his shirt appeared to be torn in the front. She told the sheriff's deputy that the clothing appeared to be the same and that his height, weight and general appearance were the same. She testified that he looked like the man, but she could not be positive. The deputies then asked her if she could get out of the van and come into the station. She did so and noted that the lighting inside the station was much brighter. She looked closely at defendant when she got into the station and said, "That's the man." Defendant then began to speak, and the victim testified that she recognized his voice. He had a very distinctive voice and there was absolutely no doubt in her mind that this was the man who had attacked her. She told the deputy sheriff, "I would recognize that voice anywhere."

Los Angeles County Deputy Sheriff Glen Bartholomew testified that, after receiving a report from the victim and description of defendant, he went to the Catalina pier and radioed the harbor patrol office. He spoke to the patrolman on duty and asked him to radio the shore boat which had recently left the pier and determine whether anyone matching the description of the assailant was on board. Arrangements were made for the shore boat to turn around. When the boat docked, the officer saw defendant, who matched the description, and defendant was arrested.

Defendant testified in his own defense that he had spent the evening on the island drinking in various bars. He denied going to the victim's residence or raping her.

The Substitution of the Alternate Juror

During jury voir dire, after counsel for both sides had accepted the jury panel as constituted, the judge inquired whether any of the jurors anticipated illness or any problems which might interfere with their service. Mr. Ernest Martinez informed the court that his wife anticipated cataract surgery and that he would have to drive her to the doctor's office and hospital. He informed the court that he would not be needed until the following week. The court stated: "I don't think that will be a problem. I think we will have the case completed by then. One alternate was then chosen, and the jury was sworn in.

On Friday, August 4, the jury was instructed and began deliberations at approximately 2:00 p. m. At approximately 4:30, the jury was recessed until 11 o'clock Monday morning. Juror Martinez approached the court outside the presence of the jury and counsel and informed the court that he had to take his wife to a specialist Monday morning. He told the court that his wife had a 9:30 a. m. appointment and that thereafter he might be required to take her to another specialist or to the hospital. The court instructed Mr. Martinez to keep the appointment and try to be back to court by 11:00 o'clock. If he could not return on time, he was to telephone the judge.

On Monday, August 7, at 11:15 a. m., the court reported to defendant and counsel the conversation with Mr. Martinez the previous Friday. The court then stated: '. . . He has called in this morning, and I have not talked with him, but my bailiff has. Essentially, the information he is conveying is that he will be tied up all day with his wife. She apparently is going to have to be seen by another doctor today, and he just doesn't feel that he can get here at all. . . . My suggestion is that, inasmuch as Mr. Martinez had alerted us to the problem I recall it vividly. I told him I thought we would have the matter resolved by the end of last week. We now give him the opportunity to finish that personal problem that he has and that we use the alternate juror. I don't feel that I can compel Mr. Martinez to come in today and abandon his wife. By the same token, I don't want to keep the jury waiting for another day if he is not here. What I want to do at this time is excuse Mr. Martinez and substitute in Mr. Montgomery. I have shared what has happened with you, and I hope you understand why I have indicated what I want to do and why."

Counsel and the court then agreed on the proper jury instruction to...

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