People v. Lindsey

• Decision Date: 14 September 1978
• Docket Number: Cr. 31489
• Citation: People v. Lindsey, 149 Cal.Rptr. 47, 84 Cal.App.3d 851, 2 A.L.R.4th 485 (Cal. App. 1978)
• Parties: , 2 A.L.R.4th 485 The PEOPLE, Plaintiff and Respondent, v. Toney Lee LINDSEY, Defendant and Appellant.
• Court: California Court of Appeals

Page 47

149 Cal.Rptr. 47

84 Cal.App.3d 851, 2 A.L.R.4th 485

The PEOPLE, Plaintiff and Respondent, v. Toney Lee LINDSEY, Defendant and Appellant.

Cr. 31489.

Court of Appeal, Second District, Division 5, California.

Sept. 14, 1978.

Gary K. Olsen, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

After a trial by jury, defendant Toney Lee Lindsey was found guilty of having committed violations of Penal Code ¹ section 288a, subdivision (c) (oral copulation by force count I) and section 459 (burglary first degree count II), with a finding, pursuant to section 461, that defendant with the intent to do so inflicted great bodily injury during the commission of the burglary. With respect to an October 5, 1976, offense, defendant was found guilty of violating section 459 (burglary first degree count IV). ² Regarding a December 1, 1976, assault, defendant was found guilty of violating section 261.2 (rape resistance overcome by force count V) and section 459 (burglary first degree count VI) again with a finding under section 461 that defendant, with the requisite intent, inflicted great bodily injury during the commission of the burglary.

For purposes of sentencing, pursuant to the requirements of section 654, counts I and II were merged as were counts V and VI. The merged sentences were ordered to run consecutively to each other. The sentence under count IV was ordered to run concurrently with the sentences imposed on counts II and VI.

The following evidence was introduced at trial by the prosecution.

In the early morning hours of July 9, 1976, Suzanne H. had fallen asleep on a living room couch while watching television. At approximately 3 a. m. she awoke to find a man standing over her. The man immediately grabbed Suzanne's neck and stated, "Don't move, don't make any noises or I'll kill you." Fearing sexual assault, Suzanne informed the man that she had syphilis, to which he replied, "Well, you are going to do it the other way then." While still being held by the neck, Suzanne was pulled from the couch onto the floor. There, while in a kneeling position, the man forced Suzanne into an act of oral copulation. After ejaculating, the man momentarily lost his grip and Suzanne immediately went to the front door of her residence. After opening the door, she demanded that the man leave; he nonchalantly walked out the back door.

The man had placed a pillow upon Suzanne's face, thus initially awakening her. Though her hands were effectively held immobile, Suzanne was able to dislodge the pillow from her face by moving her head. Suzanne testified that although the lights in the residence were not on, outdoor lighting permitted her to clearly see her assailant. Suzanne stated that she consciously made an effort to observe her assailant's features. Suzanne identified defendant as the assailant. A dark blue jacket later taken from defendant's residence pursuant to a consent search was identified by Suzanne as being similar to that worn by defendant during the attack.

Suzanne testified to another attack committed by defendant on October 5, 1976. Under similar circumstances, Suzanne had fallen asleep while watching television in her living room. She awoke to find a man standing over her. The man immediately grabbed her neck with one hand and with the other hand placed a paring knife taken from the kitchen to her throat. The assailant stated, "Don't make any noise or I will stick this in your neck." Suzanne, mistakenly believing that her husband was home, screamed his name. In response, the man ran from the residence by way of the back door.

Though the assailant wore a nylon stocking over his head, Suzanne testified that she could see through it. Further, based on similarity of physical dimensions and voice recognition, Suzanne identified the assailant as defendant. In addition, Suzanne testified that she had identified defendant as the assailant during a police lineup.

On December 1, 1976, Deborah S. was ill and was asleep in the bedroom of her residence when she was awakened at 10:30 p. m. by a man. The man had placed a knife at her left cheek and a pillow covering her face. Feeling that her best defense was to gain the man's confidence, Deborah engaged in conversation with the man lasting approximately one hour and forty-five minutes. Deborah succeeded in having the man place the knife on the floor. The man, at one point, disrobed and entered the bed with her. The man had been wearing dark gloves, gray sweatshirt and pants, and tennis shoes. Deborah attempted to dissuade the man by telling him, "Why don't you memorize my phone number and leave right now and then call me and we will talk on the phone and we will get to know each other. Maybe we can go to a movie or something." Nonetheless, the man forced Deborah to engage in an act of sexual intercourse during which time the man climaxed. The man then left. Exhausted by her illness, Deborah fell asleep for two hours before contacting neighbors. The next morning she called the police. Deborah was taken by the police to a hospital where a pelvic examination revealed the presence of semen.

Deborah, though admitting there was little light in the bedroom, identified defendant as her assailant. On cross-examination Deborah conceded that she consciously attempted not to look at defendant and admitted that at a police photo lineup she could only identify defendant as the closest to the person who assaulted her. On redirect examination, Deborah reaffirmed her in-court identification and also testified as to her identification of defendant at the preliminary hearing. She testified that at the preliminary hearing, ". . . I saw his profile I had a really close look. I remembered his profile of his body and his face very, very vividly. More so than the full, right-on, because I looked, I looked I remember looking at the side of his face when he wasn't looking. When he was standing in the doorway of my bedroom and hallway. And that is when I got the best look at him." Deborah indicated that she was not shown defendant's profile during the lineup.

At approximately 2:30 a. m. of December 1, 1976, Los Angeles police officer on routine patrol issued a traffic citation to defendant for riding a bicycle through a red light. At the time defendant was observed to be wearing a gray sweatshirt and tennis shoes.

Two days later, on December 3, an envelope on which "Debbie, Toney and Love" were written was placed into the mailbox at Deborah's residence. Latent fingerprints lifted from the envelope matched an exemplar taken from defendant.

Over objection, a police chemist, after being qualified as an expert, was permitted to testify regarding his analysis of the slide taken during the pelvic examination of Deborah and of blood and saliva samples taken pursuant to court order from defendant. The chemist explained that it is possible to determine the blood type from an analysis of a male's semen. The chemist testified that one slide taken from Deborah disclosed the presence of antigenic substances consistent with an "O" blood type and that the blood and saliva samples taken from defendant revealed an "O" blood type. The chemist stated that approximately 36 percent of the population would secrete type "O" blood antigenes into body fluids such as semen. On cross-examination, the chemist did concede that if Deborah was a secreter it would have been possible for her blood type to appear in her vaginal secretions. No typing of Deborah's blood was conducted.

The defense consisted primarily of the alibi testimony of defendant's girl friend, Sharon L. She testified, not without numerous inconsistencies, that she had been living with defendant at various addresses during the period the offenses were committed. She testified that as part of their living arrangement she was with defendant during the entire evening of July 9. However, rebuttal testimony indicated that Sharon began living with defendant as of October, later that year. Regarding December 1, she testified that defendant was positively with her that night from midnight on. On cross-examination, she conceded that defendant could have been out of the house during the time Deborah was assaulted and admitted knowledge that defendant had received a ticket possibly after midnight. Sharon gave no alibi testimony concerning October 5, stating that she could not remember that date. In addition, the defense developed minor discrepancies in the descriptions given by Suzanne and Deborah to police. Defendant elected not to testify.

Defendant appeals from the judgment of conviction, making the following contentions: (1) the trial court abused its discretion in denying defendant's various motions for substitution of appointed counsel; (2) defendant was denied his constitutional right of self-representation; (3) it was error to admit testimony concerning blood typing over defense objection; and (4) the trial court erroneously instructed the jury that the commission of forcible rape or oral copulation alone could constitute great bodily injury. With the exception of defendant's last contention, which requires the striking of the findings of great bodily injury in counts II and VI, judgment is affirmed.

1. Substitution of appointed counsel

Defendant on four separate occasions moved to have appointed counsel, a representative from the public defender's office, substituted. Each motion was denied. No reporter's transcript of defendant's first two motions was provided on appeal. The record of the third motion made on July 12, 1977, reveals the following:

Defendant, on that date, charged that his appointed counsel was not representing him "to the best of her knowledge." After noting the...