People v. Hesslink

• Decision Date: 01 May 1985
• Citation: 167 Cal.App.3d 781,213 Cal.Rptr. 465
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles W. HESSLINK, Defendant and Appellant. Crim. 16226. E000300.

Page 465

213 Cal.Rptr. 465

167 Cal.App.3d 781

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles W. HESSLINK, Defendant and Appellant.

Crim. 16226.

E000300.

Court of Appeal, Fourth District, Division 2, California.

May 1, 1985.

Review Denied Aug. 15, 1985.

[167 Cal.App.3d 784] Bruce Daniel Rosen, San Diego, for defendant and appellant.

[167 Cal.App.3d 785] John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Charles W. Hesslink (defendant) was found guilty by a jury of forcible oral copulation (Pen.Code, § 288a, subd. (c), count 1); extortion (Pen.Code, § 518, count 2); and impersonating a police officer, a misdemeanor (Pen.Code, § 146a, count 3). As to several similar charges involving a different alleged victim the jury was unable to agree and a mistrial was declared. Defendant was sentenced to state prison for the lower base term of three years on count 1 and the lower base term of two years on count 2 to be served concurrently. On count 3 defendant was granted probation for a period of 2 years.

Defendant appeals contending: the conviction of extortion must be reversed because (1) it is not supported by the evidence and (2) the court erred in failing to deliver, sua sponte, an instruction on specific intent; the conviction of forcible oral copulation must be reversed because (1) the evidence does not show the commission of that crime and (2) in instructing on that crime the court included legal theories of liability not justified by the evidence; defendant's motion for new trial on the ground of insufficiency of the evidence was erroneously denied as to the conviction for forcible oral copulation; contrary to the court's express statement of its understanding, it had the authority, pursuant to Penal Code section 1385, to grant him probation notwithstanding the provisions of Penal Code section 1203.065, subdivision (a), mandating a state prison sentence; and, finally, Penal Code section 1203.065, subdivision (a), as applied to the facts of this case results in unconstitutionally cruel and unusual punishment.

Facts

The victim, a prostitute, was in the area of Chestnut and Seventh Streets in Riverside at about 11 a.m. on November 30, 1982. Sometime between 12 and 1 p.m., defendant, driving a blue Chevrolet Malibu, stopped his car on Seventh Street. The victim walked over to defendant's car and talked to him because she thought he might be a customer. Defendant told the victim he was looking for some "head," a street term the victim knew to mean an act of oral copulation. The victim agreed and got into defendant's car. A price of $20 for the act of oral copulation was agreed to. The two then drove for about five minutes to a secluded road under the freeway near Fairmont Park in Riverside. When the car stopped, defendant and the victim engaged in conversation during which the victim told defendant that she had a six-year-old daughter and was separated from her husband.

Defendant displayed a badge and handcuffs and told the victim he was a police officer and would have to arrest her. Defendant then proceeded to pat the victim down in a nonsexual manner. He asked her if she had ever before been arrested and she replied she had not. The victim was fearful she was going to go to jail. Defendant then initiated a discussion about working out a deal with her since she would not have anyone to look after her daughter while she was in jail. Defendant insinuated that the victim's daughter would be taken away from her. The victim interpreted defendant's statement to mean that her daughter might be placed in a foster home.

Defendant asked the victim if she had $2,500 to post bail. When the victim replied that she did not, defendant stated that he could possibly get the bail reduced. The victim believed at that time that defendant was interested in money and that if she gave him some he would not take her to jail. She then reached into her back pocket and handed defendant $50. Defendant accepted the money.

Defendant then unzipped his pants, exposed himself and asked the victim if she could do him another favor. Defendant placed his hand on the victim's head and pushed her face down toward his penis. The victim then orally copulated defendant. She did so to avoid being taken to jail.

After the victim finished orally copulating him, defendant gave the victim a lecture on vice officers. He intimated to her that some other vice officers would be interested in working out a deal with her, but warned her that one particular officer would arrest her for soliciting. Defendant then drove her back to Chestnut and University. Before dropping her off at that location, he told her that his name was Rick Thomas and gave her a phone number where he could be reached. He also told her that she would see him around and that if she did not have a date when he came by she should come over to his car and they would take a ride. As defendant drove away, the victim memorized all but one digit of his license plate number and wrote it down immediately thereafter.

The victim called the police later that day but did not reveal all of the facts for fear she would get herself into trouble. The victim later reported the entire incident to Officer Ken Fouse. She gave Fouse a physical description of defendant, including the fact that defendant had a dark scar on his lower left abdomen, a description of defendant's car and the license plate number. Based on this information, defendant's car was located on December 6, 1982. Defendant was arrested and taken to Riverside, as was his car. Officer Fouse later searched defendant's car in the rear parking lot of the Riverside police station and found a badge and a holder and a pair of handcuffs under a floor mat on the driver's side. The handcuffs were marked with the initials "CWH".

Discussion

I

The Extortion Conviction

Sufficiency of the Evidence

As we shall explain, we agree with defendant's contention that extortion is a specific intent crime and that his conviction of that charge must be reversed because the trial court failed to instruct the jury on the required specific intent. However, because of the nature of several of defendant's arguments concerning the sufficiency of the evidence and the possibility of retrial on that charge, it is appropriate that we address preliminarily his contention that the extortion conviction is not supported by substantial evidence.

Citing a long list of cases in which the accused demanded from the victim a specific sum of money, defendant points out that he did not and argues that evidence of a request or demand for a specific sum is required to support a conviction for extortion. We do not agree. Penal Code section 518 which defines the crime of extortion contains no such requirement. It reads: "Extortion is the obtaining of property from another, with his consent, ... induced by a wrongful use of force or fear, or under color of official right." (Emphasis added.)

It is true that in many cases a specific sum of money was requested or demanded, but so far as we are informed no appellate decision has held or stated that evidence of a demand or request for a specific sum is a prerequisite to a conviction of extortion.

Next, defendant asserts that he had a legal right to make a citizen's arrest of the victim for the misdemeanor of soliciting an act of prostitution (Pen.Code, § 647, subd. (b)), and argues that since he had the right to make such an arrest, his threat to arrest the victim could not be "a wrongful use of ... fear" under the statute. Not so. First, even if defendant had the right to arrest the victim, he was not at liberty to threaten to arrest her for the purpose of extorting money or property from her. (People v. Powell (1920) 50 Cal.App. 436, 441, 195 P. 456; cf. People v. Beggs (1918) 178 Cal. 79, 84-85, 172 P. 152.) As stated by the court in Powell: "But we do not think that, merely because of the conceded guilt of the complaining witness, defendant is thereby relieved of the pains and penalties of the offense charged--extortion.... Under section 518, ... obtaining the payment of money from a violator of the ordinance referred to by a threat of arrest and detention if the payment be not made, is extortion, and this without regard to the exercise of good faith in threatening to make the arrest." (50 Cal.App. 436, 441, 195 P. 456.)

Further, although it is true a private person as well as a police officer may arrest another for the commission of a misdemeanor offense if committed or attempted in his or her presence (Davis v. Pacific Teleph. etc. Co. (1899) 127 Cal. 312, 322, 59 P. 698; People v. Campbell (1972) 27 Cal.App.3d 849, 853, 104 Cal.Rptr. 118; Pen.Code, § 837), nevertheless, to justify an arrest for a misdemeanor without a warrant, the arrestor must proceed as soon as possible to make the arrest, and if instead of doing so he goes about other matters unconnected with the arrest, the right to make the arrest ceases. (Hill v. Levy (1953) 117 Cal.App.2d 667, 670, 256 P.2d 622.)

Here, while defendant may initially have been authorized as a private citizen to arrest the victim for solicitation of prostitution, the right ceased to exist when defendant failed to inform the victim of his authority as a citizen to arrest her, failed to make such an arrest promptly and deliver the arrested victim to the proper legal authority, illegally represented himself to be a police officer, and engaged in illegal and unrelated matters not connected with the offense of soliciting prostitution.

Failure to Instruct on Specific Intent

As noted preliminarily, we agree with defendant that extortion is a specific intent crime and that the trial court was required sua sponte to so instruct the jury. It is well settled, of course, that the trial court has a duty in criminal cases, even in the absence of a request, to instruct the...