People v. Laster

• Decision Date: 10 June 1971
• Docket Number: Cr. 8683
• Citation: 96 Cal.Rptr. 108,18 Cal.App.3d 381
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis LASTER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 108

96 Cal.Rptr. 108

18 Cal.App.3d 381

PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis LASTER, Defendant and Appellant.

Cr. 8683.

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

June 10, 1971.

William Ray Hawes, San Francisco (Under appointment of the Court of Appeal) for defendant and appellant.

Thomas C. Lynch, Evelle J. Younger, Attys. Gen., Robert R. Granucci, Michael Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment which has subjected him to consecutive sentences in state prison for forcible rape in violation of subdivision 3 of section 261 of the Penal Code, kidnapping in violation of section 207, robbery in violation of section 211, and assault by means likely to produce great bodily injury in violation of subdivision (a) of section 245. Judgment was pronounced following a jury trial in which verdicts were returned finding him guilty of each offense.

He makes the following contentions: (1) that all of the convictions should be reversed because his constitutional right to a public trial by an impartial jury was not safeguarded by either court or counsel; (2) that his conviction of robbery should be reversed because there is no evidence that he aided or abetted the commission of the crime of robbery; (3) that his conviction of kidnapping should be reversed because the trial court refused to instruct the jury correctly concerning the element of asportation; and (4) that the court violated the provisions of section 654 of the Penal Code in imposing multiple sentences for offenses which constituted an indivisible course of conduct.

For the reasons set forth below it is concluded that the defendant's convictions must be affirmed, but that proscriptions against multiple punishment require that the sentences for other than forcible rape and robbery should be set aside.

The offenses involved in this and a companion case (People v. Charles, 1 Crim. 8684) arose out of the following common facts to which the victim testified at each trial.

On July 21, 1969 about 12:30 a.m. the victim, an 18-year-old girl, was driving alone from Boonville toward her home on the Boonville-Ukiah road. As she left Boonville she passed a car which subsequently overtook and passed her. Thereafter as she approached a curve in the road she noticed a man, whom she subsequently identified as Charles, hitchhiking. She continued around the curve and found the car which had passed her stopped crossways in the road blocking her way.

After she stopped, Charles and one of two men who were in the car approached her. They said they were having car trouble. An attempt to start the other car by pushing it with the victim's car was unsuccessful. Charles got into the back seat of her car and the second man, identified as Shawgo, entered the front seat with the victim. She suggested that they get out while she went to call a tow truck, but they refused.

The victim started driving back to Boonville. While she was driving Shawgo reached over and turned off the ignition and Charles seized her in a chokehold and forced her to stop the car. At or about this time Shawgo reached in her purse and removed something. (Other testimony established that a dollar she had when she left Boonville was missing from her purse after the incident.)

The car which had been blocking the road approached from the rear and stopped. Charles released the victim and left her car to talk to the third man in the other car. Although the victim was unable to identify this third man, it was admitted in defendant's opening statement that appellant Laster had been with Charles and Shawgo, and he subsequently so testified. The victim attempted to escape by running down the road, but the men pursued her and she was caught by Charles. When she screamed he hit her about the face several times. He pushed her into the back seat of her car. There he struck her several more times and removed her clothing.

Shawgo drove the victim's car back towards Ukiah about four miles to a gate at the roadside. The car was used to force open the gate and something went wrong with it. They left the car, and as an automobile passed on the road, her abductors ran and the victim was dragged along the ground by Charles.

There, off the road, Shawgo and Laster had sexual intercourse with her, while Charles just stood around. Thereafter her car was started, her abductors released her and drove off in the other car, and she drove to her home, where she arrived about 5:30 a.m.

Medical examination conducted that morning showed that her injuries due to the beating, dragging, and forced intercourse were severe.

Other facts are discussed in connection with the legal issues to which they pertain.

I

Defendant did not move for a change of venue under section 1033 of the Penal Code. The record fails to show that the jurors who heard the case had been exposed to unfavorable extrajudicial publicity. Nor does the record show that any such publicity in fact existed.

In his brief defendant sets forth what he alleges to be accounts of the crime which appeared in a local paper, as follows: July 21, 1969, an account by the victim without naming the accused; July 22, 1969, a narration of the arrest of the defendant and Shawgo; July 23, 1969, the victim's story without naming the accused; and on August 14, 1969, a similar account. Meanwhile the defendant Charles was arrested and brought to trial. Defendant refers to three alleged articles, November 6, 1969, November 7, 1969 and November 10, 1969, in which he was linked with Charles in accounts of the latter's trial and conviction. Defendant contends that the foregoing publicity, and the lingering effect of the Maine case (see Maine v. Superior Court (1968) 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372), which involved a sensational crime in the same community, precluded his receiving a fair trial at a time only 10 days after Charles' conviction.

In the absence of anything in the record concerning the adverse publicity, the matter is not properly before this court on appeal. Matters in the appellant's brief which are outside the record may not be considered on appeal. (People v. Richardson (1968) 258 Cal.App.2d 23, 28, 65 Cal.Rptr. 487, People v. Walker (1967) 247 Cal.App.2d 554, 563, 55 Cal.Rptr. 726, cert. den. 389 U.S. 824, 88 S.Ct. 60, 19 L.Ed.2d 77.) The statement by the court in People v. Byers (1970) 10 Cal.App.3d 410, 415, 88 Cal.Rptr. 886, that newspaper articles could not be considered when there is no showing of the date and source of their publication does not inferentially change the foregoing rule. In Sheppard v. Maxwell (1966) 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, the publicity complained of was incorporated in the record of collateral proceedings (see 384 U.S. at p. 335, 86 S.Ct. 1507). In Maine v. Superior Court, supra, 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372, the offensive matter was in the record of proceedings for a change of venue (see 68 Cal.2d at pp. 384--388, 66 Cal.Rptr. 724, 438 P.2d 372. See also Irvin v. Dowd (1960) 366 U.S. 717, 720, 81 S.Ct. 1639, 6 L.Ed.2d 751).

Moreover, when the defendant has failed to move for a change of venue he cannot, thereafter, rely on pretrial publicity as a grounds for setting aside his conviction. (People v. Cook (1952) 39 Cal.2d 496, 499, 247 P.2d 567; People v. Richardson supra, 258 Cal.App.2d 23, 29, 65 Cal.Rptr. 487; People v. Walker, supra, 247 Cal.App.2d 554, 563, 55 Cal.Rptr. 726.)

Defendant further suggests that he was denied the effective assistance of counsel because his attorney, with knowledge of the foregoing publicity, failed to move for a change of venue. (See People v. Ibarra (1960) 60 Cal.2d 460, 464--466, 34 Cal.Rptr. 863, 386 P.2d 487.) Here again the record is insufficient to permit consideration of that point. Moreover, consideration of all the extrinsic matter incorporated in defendant's opening brief reveals the following statement by defendant's trial counsel: 'With respect to the question you raised as to the place of trial, we were able to eliminate, through voir dire those people who had such a knowledge of the case that they would not be impartial jurors and by using all the peremptory challenges I eliminated the people whom I felt might have knowledge from the newspaper or radio even though they would not admit it. The foreman of the jury was actually a close personal friend of mine for many years, Les Larson, manager of the Bank of America at Fort Bragg and about as fair minded an individual as I have ever known. I believe that within my memo in re sentencing you will find the basic authorities upon which an appeal could be founded. * * *' Since, as appears below, defendant Laster did not deny that the offenses alleged were committed, but merely denied his complicity in their commission, it may be said that the decision to try the case locally and attempt to shift the blame to his companions was a tactical one.

Defendant has failed to show that he was denied a fair trial by reason of unfavorable publicity, either as a matter of fact, or as a matter of law.

II

As appears above, the robbery occurred when Shawgo took a dollar from the victim's purse shortly after he and Charles forced her to stop her car. Defendant Laster testified that although he was aware his friends had entered another car when his car had died, he was not aware that there was a girl in the other car, or that she had been subjected to the acts preceding the last stop by the gate in the road. He testified that he merely followed the other car up to that point, and there, off the road he first met the victim and had intercourse with her with her consent and her enjoyment. Defendant also points out that an original charge of kidnapping with intent to commit robbery in violation of section 209 of the Penal Code was reduced to simple kidnapping by amendment of the...