People v. Jamison

• Citation: 150 Cal.App.3d 1167,198 Cal.Rptr. 407
• Decision Date: 20 January 1984
• Docket Number: Cr. 15234
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Ray JAMISON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 407

198 Cal.Rptr. 407

150 Cal.App.3d 1167

The PEOPLE, Plaintiff and Respondent, v. Thomas Ray JAMISON, Defendant and Appellant.

Cr. 15234.

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

Jan. 20, 1984.

Hearing Denied April 26, 1984.

Quin Denvir, State Public Defender, and Handy Horiye, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., A. Wells Petersen and Raquel M. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.

COLOGNE, Acting Presiding Justice.

Thomas Ray Jamison appeals his jury-tried conviction of forcible rape (PEN.CODE, § 261¹, subd. (2)) with use of a firearm during the rape (§ 12022.3, subd. (a)) and robbery (§ 211) with personal use of a firearm (§ 12022.5). The trial court sentenced him under section 667.6, subdivision (c), to a full, separate and consecutive term of 11 years for the rape with firearm use (8 years upper term plus 3 years enhancement), and to 3 years, the middle term, for the robbery, staying the firearm use enhancement connected with the robbery.

Catherine S., a 21-year-old college student, met Jamison for the first time on January 18, 1982, at a farewell party for Timothy Peete, Jamison's neighbor. Jamison attended the party a total of about five minutes and conversed briefly with Catherine about her brother whom Jamison knew. A few days later, while driving by Catherine's apartment, Jamison told Peete Jamison would "like to get some of that," meaning he would like to have sex with Catherine. Peete pointed out the exact apartment in which Catherine lived.

On March 31 at about 6:30 p.m., Jamison rapped on the screen door of Catherine's apartment and walked inside. Catherine looked to see who it was and Jamison reminded her he was Peete's friend. Catherine recalled having met Jamison and she offered him a glass of wine. The two conversed for about 45 minutes before Jamison said he wanted to make love to her but could not do anything about it because Peete liked her. Catherine became extremely nervous and Jamison pursued the matter, trying to kiss her. Catherine pushed him away. Jamison asked her if she thought he was not good enough for her and she replied "no," she just did not want to kiss him.

Jamison again tried to kiss her and she pushed him away once more. He then drew a gun. He showed her the gun's clip was fully loaded. He put the gun next to her temple and said, "give me your tongue." He kissed her again, then said he was going to a next door apartment and "get" its occupant because Jamison did not like the way he looked at him as Jamison walked by. Catherine pleaded with Jamison not to shoot the neighbor. In response, Jamison required Catherine to get on the floor on her stomach and he tied her hands behind her back and to an ironing board using a telephone cord. He announced he was doing this so he could go next door and "get" the neighbor. When Catherine began to cry, Jamison told her if she kept doing so he would have to shoot her. She stopped crying and again asked him not to hurt the neighbor. He answered if she were "real sweet" to him, he would not "get" the neighbor. Jamison then untied Catherine's wrists, had her turn over and retied them. He proceeded to remove her clothes and continued kissing her. He fondled her private parts, causing bleeding, then raped her. During intercourse, he said, among other things, he wished he was white so he could marry her.

Afterward he told Catherine he wanted money. When she explained she had none, he decided to take some of her property, including a television, two typewriters, a stereo receiver, two speakers, a calculator, a camera and two gold necklace chains. In order to do so, he required Catherine to help him conceal the belongings in luggage boxes and a laundry basket, and to carry her property to his car. Jamison took Catherine's telephone number and told her if he found the police were looking for him he would kill her and the neighbor. When he left, Catherine told her neighbors about the events, including the gun, the rape and the robbery. She warned them not to call the police, but one of them did anyway.

When Catherine returned to her apartment, she received a phone call from Jamison who again told her if police were looking for him he would come back and get her.

Later, in April, Jamison again called Catherine to ask her why she had called police. He was arrested not long afterward. Most of Catherine's property which he had attempted to dispose of was recovered.

Jamison's defense was, essentially, the intercourse and taking of property were accomplished with Catherine's consent. His testimony was impeached by evidence of irreconcilable statements he made to the police shortly after his arrest to the effect he was not in Catherine's apartment at the time in question and he had not taken any property.

Jamison contends admission of evidence of a prior rape was prejudicial error. The prior rape occurred when Jamison knocked on the door of the home of Janet D., whom Jamison had seen once before, and told Janet her daughter had been hurt on the playground. When Janet opened the door, Jamison pushed his way into the house, threatened Janet with a knife, turned on some music, directed her to go upstairs and raped her. He then tied her arms and legs, using Janet's pantyhose, and asked her for money. He searched through her wallet, purse and drawers, taking some money and jewelry, including necklaces and bracelets. He also took some photographs of Janet and her daughter. He told Janet if she called the police, he would come back and kill her and her daughter.

The prosecutor offered the evidence of the earlier rape to corroborate Catherine's testimony the rape was not consensual, to show, as to a burglary count against Jamison, his intent was to commit rape, and to show his common design. In admitting the evidence, the trial court identified 11 points of similarity in that the victims were "both single, females alone in their apartment, females observed on a prior occasion, entered under false pretenses," "knew someone close to the victim, used and weapon once inside, both victims tied, demanded money, took jewelry in both cases, necklaces," "told both victims upon leaving, 'Better not call the police,' and in both cases he threatened someone else in addition to the victim."

Both Jamison and the Attorney General agree the evidence of the prior rape bears on the material issue of corroboration. Jamison contends, however, none of the features of the prior rape are sufficiently distinctive so as to corroborate Catherine's testimony. Jamison criticizes the finding certain features were similar, noting such things as that Catherine lived alone while Janet lived with a daughter, a gun was used in Catherine's rape and a knife in Janet's, the tying occurred before and during the rape of Catherine but after the rape of Janet, and there were differences in the entry into the victims' homes. Jamison further claims the remaining features are not distinctive in the sense that the stealings, warnings not to call police and threats directed to the victims as well as others are not so distinctive as to conclude if he committed the prior rape he must have committed the present one (see People v. Thomas, 20 Cal.3d 457, 465, 143 Cal.Rptr. 215, 573 P.2d 433). Finally, Jamison points to certain dissimilarities in that Catherine was a 21-year-old student who socialized with friends common to herself and Jamison, while Janet was a 42-year-old nurse who had a daughter about the age of Jamison whom she did not know; and the rape of Catherine took place after 45 minutes of conversation, while Janet's rape involved an immediate assault when she opened the door.

We observe certain of Jamison's descriptions of the evidence are tainted with subjectivity understandably born of advocacy. When he says the entry into Catherine's apartment was "totally consensual," we cannot but point out Jamison had knocked and was inside Catherine's apartment before she even looked to see what or who it was, and she was surprised. Moreover, it hardly conveys an accurate impression to say Catherine "socialized with some friends common to both herself and [Jamison]," in comparison to Janet's not knowing Jamison at all, when the fact is Catherine had met Jamison only once before, at a party he attended for five minutes, and they talked inconsequentially about her brother and perhaps his travel plans. Thus, we disregard these assertions of mistaken similarity or dissimilarity.

The remaining points raised in Jamison's critique of the trial court's ruling simply are not sufficiently significant to permit the conclusion there was error in the admission of the prior rape evidence. The 11 points of similarity the trial court identified are ample support for the admission of the evidence, in combination creating a picture sufficiently distinctive to corroborate Catherine's testimony. Contrary to Jamison's assertion, this evidence was not solely relevant to the improper purpose of admissibility, propensity of Jamison to commit the crime (People v. Thompson, 27 Cal.3d 303, 316, 165 Cal.Rptr. 289, 611 P.2d 883). We note the jury was properly instructed in the words of CALJIC No. 2.50 ² on the limited use to which the evidence could be put, and we find no error in the admission of the evidence.

Jamison contends instruction in the language of CALJIC No. 10.21 was prejudicial error. The instruction given was:

"It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence."

The court also gave CALJIC No. 2.27, as follows:

"Testimony which you believe given by one witness is sufficient for the proof of any fact. However, before finding any fact required to be established by the Prosecution to be proved solely by the testimony of...