People v. Lindsay

Citation38 Cal.Rptr. 755,227 Cal.App.2d 482
Decision Date27 May 1964
Docket NumberCr. 4285
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Norman LINDSAY, Defendant and Appellant.
CourtCalifornia Court of Appeals

Page 755

38 Cal.Rptr. 755
227 Cal.App.2d 482
PEOPLE of the State of California, Plaintiff and Respondent,
Thomas Norman LINDSAY, Defendant and Appellant.
Cr. 4285.
District Court of Appeal, First District, Division 1, California.
May 27, 1964.
Rehearing Denied June 16, 1964.
Hearing Denied July 22, 1964.

Page 758

[227 Cal.App.2d 487] Andrew P. Smirnoff, San Francisco, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen. of the State of California, Albert W. Harris, Jr., Derald E. Granberg, Deputy Atty. Gen., San Francisco, for respondent.

Page 759

MOLINARI, Justice.

Defendant, who was found guilty by a jury on seventeen of twenty-two counts of an indictment, 1 appeals from the judgment of conviction. Counts 1 to 7, inclusive, charge offenses allegedly perpetrated upon the person and against the property of Miss R; Counts 8 to 16, inclusive, upon the person of Mr. M and Miss S; Counts 17 to 20, inclusive, upon the person of Miss K and Mrs. K, and the property of Mrs. K; and Counts 21 and 22, upon the person and property of Miss C. Preliminary to a discussion of the questions raised on appeal we proceed to discuss the nature of these counts and the facts pertinent to the commission of the crimes [227 Cal.App.2d 488] charged. In doing so, we shall treat the four occurrences, which are the subject of the indictment, under the four separate headings which immediately follow.

The 'R' Counts

Defendant was found guilty on five of the seven counts applicable to Miss R. He was convicted of counts charging a violation of the following Penal Code sections: Count 1, section 459 (burglary); Count 2, section 288a (sex perversion); Count 3, section 261, subd. 4 (rape); Count 4, section 261, subd. 4 (rape); and Count 7, section 211 (robbery). 2 The facts related to these counts follow:

On October 17, 1961, Miss R was awakened shortly after going to bed around 11 p. m. by a flashlight shining in her face. A man was standing inside her bedroom door with the flashlight in one hand and a knife in the other. He said, "Don't scream. Do you want to get hurt? Do you want to get hurt?" He was wearing cotton garden gloves. He approached the bed, removed the covers and placed a pillow over her head. When she asked him to remove it, he slipped the pillowcase off and covered her face with it. He undressed and got in bed with her. After he was in bed, he began feeling Miss R's private parts and tried to kiss her. He forced her to orally couplate him and then forced her to engage in sexual intercourse with him. Following this act of sexual intercourse, Miss R was bleeding and had to use the bathroom. The man accompanied her to the bathroom and upon returning he again forced her to engage in an act of sexual intercourse. After this second act of intercourse, he covered Miss R's face, dressed himself, tied her up and went to a dresser where he took some money from her purse. He inquired where her valuables and cameras were and she replied that she did not know. He said, "Well, if I don't find them, I will come back to you."

At 4:54 a. m. an officer at the Redwood City Police Department received a telephone call from a man who said, 'Take this down the first time. I am only going to tell you once. There is a girl at the * * * [R] residence on Hardwick Road that is badly hurt and needs help. * * *". Two deputies answered the call and in a bedroom they found Miss R tied hand and foot kneeling at the end of the bed. There were cuts about her face and breasts; her face, shoulders, breasts, [227 Cal.App.2d 489] and body down to her waist were bloody. The doorjamp on the door to the bedroom had been broken and the striker was on the floor. The room was in disarray and looked as if it had been ransacked. In the hallway outside the bedroom the officers found a butcher knife.

The 'M' and 'S' Counts

With respect to these counts, defendant was found guilty on seven and acquitted on two. 3 The convictions were upon counts charging a violation of the following Penal Code sections: Count 8, section 209 (kidnapping

Page 760

for purpose of robbery); Count 10, section 209 (kidnapping for purpose of robbery); Count 12, section 261, subd. 3 (rape); Count 13, section 286 (sodomy); Count 14, section 664 (attempted sex perversion); Count 15, section 211 (robbery); and Count 16, section 211 (robbery). 4 The evidence adduced on these counts follows.

On the night of October 24, 1961, Mr. M and Miss S drove to the area of the Pulgas Water Temple in San Mateo County. When they were about to leave, a masked man, wearing gloves and holding a gun, came running up to their car. He ordered Mr. M out of the car and locked him in the trunk. The man then drove the car for a while, and about this time he ordered Miss S to put her head down on his lap so she would not be seen. While they were driving, her skirt started to slip up and when she pulled it back down, he pulled it back up. When she attempted to pull it down again he slapped her and told her not to do that again. He then pulled the car down into a dirt road and parked it, whereupon he blindfolded her. He forced her head down and tried to place his penis in her month but he failed because she clenched her teeth. He ordered her to remove her clothing and then forced her to engage in an act of sexual intercourse. He then told her to turn over on her stomach and tried to put his private parts into her rectum. Initially he did not succeed, but when he struck her on the back and she fell to a prone position, he was able to complete the act. After completing this act, he tied her wrists and ankles and gagged her, and then he got out of the car. He took her purse and removed the money from it and some papers. the assailant [227 Cal.App.2d 490] thereupon cut through the boot of the car and demanded Mr. M's wallet. The wallet contained no money. After obtaining the wallet defendant told Miss S not to scream or say anything because he could see for a distance and he would shoot. Thereafter he removed the gag from her month and left.

The 'K' Counts

The jury found defendant guilty on three of these four counts. 5 The counts upon which he was convicted charged a violation of the following Penal Code sections: Count 17, section 459 (burglary); Count 18, section 211 (robbery); and Count 19, section 261, subd. 3 (rape). 6 The pertinent evidence adduced with respect to the commission of these crimes is as follows.

About 4 p. m. on December 20, 1960, the doorbell to the K residence rang and Mrs. K went to the front door. A man at the door forced his way into the house and ordered both Mrs. K and her daughter, Miss K, into the den, where he forced them to lie face down and bound their hands behind them with adhesive tape. The man had a knife in his hand. He asked them for their money and was told by Mrs. K that it was in her purse. After he obtained the money, he returned to the den and drew the venetian blinds and the drapes. In reply to his question Miss K told him she had some money in her purse in the kitchen. He then asked if there was any money in the bedroom, and when Mrs. K said no, he told them that if there were money there, they would be in trouble. Returning from the bedroom he said he found some money. He was holding two pillow cases which he put over their heads. The man then turned Miss K over on her back and when she screamed, he hit her. He pulled at her clothes and she lost consciousness. Mrs. K heard the struggle between her daughter and the man, and, upon hearing a dull blow, fainted. When Mrs. K regained consciousness the assailant was gone. A physician

Page 761

testified that at about 5 p. m. on December 20, he examined Miss K's genital organs; that he found male spermatozoa in the upper vaginal area; and that there had been penetration of the vagina.
227 Cal.App.2d 491

The 'C' Counts

Defendant was found guilty of both counts charging offenses with respect to Miss C. These counts (Nos. 21 and 22) respectively charged violations of Penal Code sections 459 (burglary) and 245 (assault with a deadly weapon). The facts presented in connection with the commission of these offenses are as follows.

On December 19, 1960, about noontime, a man came to the front door of the C residence, knocked and when Miss C answered the door, asked her if a certain person lived there. When she replied no, he left. Several minutes later she received a telephone call from a man. About an hour later, the same man who had previously knocked at the door returned and knocked again. Between the telephone call and the second visit by the stranger, Miss C had locked all the doors to the house. When the man returned, she called the police. The man then proceeded around the house and began knocking on the kitchen door. She then saw the man inside the house. He was armed with a knife, the point of which he held against her thigh. He took her to her parents' bedroom. The stranger asked her if she had called the police; and when she replied that she had he told her to stay on the bed and then left.

Was There an Improper Joinder of the 'M'-'S' Crimes With the Other Counts?

No. The trial court denied defendant's motion to sever the M-S counts from the others for purposes of trial. It is defendant's contention that such a denial amounted to an abuse of discretion.

An accusatory pleading may charge 'two or more different offenses connected together in their commission' or 'two or more different offenses of the same class of crimes * * *.' (Pen.Code, § 954.) In People v. Thorn, 138 Cal.App. 714, 734-735, 33 P.2d 5, 15, cited with approval in People v. Duane, 21 Cal.2d 71, 77, 130 P.2d 123, the reviewing court, in discussing the meaning of the phrase 'the same class of crimes or offenses,' stated: 'The Legislature * * * meant by the use of the words * * * offenses possessing common characteristics or attributes * * *.' The cases construing Penal Code, section 954 have uniformly allowed...

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