People v. Mayberry
| Decision Date | 05 September 1975 |
| Docket Number | Cr. 18219 |
| Citation | 542 P.2d 1337,125 Cal.Rptr. 745,15 Cal.3d 143 |
| Court | California Supreme Court |
| Parties | , 542 P.2d 1337 The PEOPLE, Plaintiff and Respondent, v. Booker T. MAYBERRY et al., Defendants and Appellants. |
George Lawrence Schraer and Michael A. Mendelson, under appointments by the Supreme Court, David B. Elefant, under appointment by the Court of Appeal, and Alan Exelrod, San Francisco, for defendants and appellants.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Ann K. Jensen and Clifford K. Thompson, Jr., Deputy Attys. Gen., for plaintiff and respondent.
An information was filed charging Franklin Mayberry and his brother Booker T. Mayberry with various offenses against the prosecutrix (Miss Nancy B.). Booker was charged with assault with intent to commit rape (Pen.Code, § 220). Franklin was charged with kidnaping (Pen.Code, § 207), rape by means of force and threat (Pen.Code, § 261, subds. 2 & 3), assault by means of force likely to produce great bodily injury (Pen.Code, § 245), and oral copulation (Pen.Code, § 288a). Following a joint trial, a jury found defendants guilty as charged on all counts, except that the jury found Franklin guilty of assault (Pen.Code, § 240), a lesser included offense in the alleged violation of section 245. Franklin received a jail term for the assault, and he and Booker received prison terms for the other offenses.
Defendants appeal from the judgments, contending that the prosecutrix' testimony is inherently improbable and that inadequate instructions, an improper charge, and certain other matters also require reversal of the judgments. We have concluded that the court erred in refusing to give instructions concerning mistake of fact and that the error requires reversal of the rape and kidnaping convictions. In all other respects the judgments will be affirmed.
Miss B., the prosecutrix, testified to the following effect:
About 4 p.m. on July 8, 1971, she left her apartment in Oakland to walk to a nearby grocery store. As she passed a liquor store, she heard 'catcalls' from some men, and Franklin, whom she had never seen before, grabbed her arm. She dug her fingernails into his wrist, and he released her. After she turned to leave, he kicked her, threw a bottle which struck her, and shouted obscenities at her. She remonstrated and continued on her way.
After she entered the grocery store, Franklin suddenly appeared beside her and said something to the effect that she was going to go outside with him and if she did not cooperate she would 'pay for it.' She replied she did not want to accompany him and looked for a store security guard but saw none. The only store personnel she observed were busy with customers and were too far away for her to gain their attention. Because of her own confusion and fear of Franklin, she accompanied him outside the store, where they remained for approximately 20 minutes. During this time Miss B. observed no one available to assist her although two women left the store in her vicinity.
Franklin, in a threatening manner, mentioned to Miss B. having sex. She rejected this, but Franklin told her she 'was going to have to go with him,' and, when she refused, struck her in the chest with his fist, knocking her down. Franklin directed obscenities at her, held his fist up to her face, and told her 'you are going to come with me' and added that if she did not do so he would 'knock every tooth out of (her) mouth.' She asked him to leave her alone, but Franklin seized her wrist and said 'come on.' In an attempt 'to buy time,' she told Franklin she wanted to purchase some cigarettes, and he agreed. Placing his hand beneath her elbow, he accompanied her to a store, approximately 100 feet away, where she purchased cigarettes for herself and Franklin. She did not explain to the clerk her predicament because she was feeling 'completely beaten' and did not think the clerk would help her.
After completing the purchase, she sat on a curb, attempted to engage Franklin in conversation and smoked a cigarette. During this period, in her words, she 'put on an act' and tried 'to fool' Franklin, thinking that she might be able to escape. He eventually said, 'we are leaving.' She 'tried to talk him out of it,' and he became angry and, uttering an obscenity, ordered her to 'get up.' She complied, and he again seized her elbow and started to guide her. While walking several blocks, they passed some business establishments, but Miss B. noticed no one on the street. She did not want to accompany him but, because of fear, did not resist.
Franklin led her to an apartment house and entered ahead of her. After they entered his apartment, he barricaded the door behind them. She did not attempt to flee because, having a leg that was stiff from an arthritic condition, she could not run fast. Approximately 15 minutes of further conversation ensued during which she unsuccessfully attempted to persuade Franklin 'to change his mind.' Without her consent, he then engaged in several acts of sexual intercourse and oral copulation with her. During the sexual assault he struck her, and because of fear she did not physically resist his advances.
While Miss B. was in the apartment, Booker entered. As she attempted to move towards the door, Booker mumbled 'want some . . ..' He thereupon seized her and dragged her towards a mattress. When she resisted, Booker threw her against the wall and struck her face with his fists. She continually attempted to reach the door but was frustrated by Booker's repeated physical restraint. During a portion of this incident Booker apparently attempted to strangle her. She finally told Franklin, who was observing the fracas, that Booker was going to kill her. Franklin thereupon stepped between Miss B. and Booker and pushed her towards the door. She broke free and left. She went to a friend's house to get aid but found no one home. She then proceeded directly to her apartment. She immediately reported the incidents to her apartment manager, and the police were summoned.
At trial a police officer testified that around 10:40 p.m. on July 8, 1971, he went to Miss B's address in response to a kidnap-rape call and observed much bruising and swelling on her face, left arm and leg.
Franklin took the stand in his own behalf and testified as follows: He saw Miss B. about 4 p.m. on July 8, 1971, and engaged her in conversation, after which he accompanied her to the grocery and the store where she purchased cigarettes. They then walked to his home. He did not threaten her, nor did she protest but accompanied him willingly and agreed to, and did engage in, intercourse. He denied seeing Booker hit her, but recalled that Booker entered the apartment while she was there and began laughing. She looked upset, said, 'I'll fix you,' and left.
Booker's testimony was that when he returned to his apartment on July 8, 1971, he found Franklin and Miss B. in bed. He left the apartment and, upon his return, commenced laughing. Miss B. put her hands over her face and left. Booker denied having touched her.
In rebuttal the prosecution presented two witnesses. One described bruises on Miss B's face and arms on the night of July 8, 1971; the other testified that she noticed nothing unusual about Miss B's face on July 7, 1971, but that when the witness observed Miss B. on July 9, 1971, her face was bruised and swollen, one eye was almost shut, and her arm was bruised.
We consider defendants' numerous contentions of error, one contention asserted jointly and the others severally.
In arguing that the prosecutrix' testimony is inherently improbable, defendants point to the facts that the prosecutrix did not report the assault in front of the liquor store to the police from a telephone that was available near the grocery store; that she did not physically resist Franklin after the initial encounter; that she failed to attempt to flee or obtain help even though there were opportunities for her to do so; that there was no evidence Franklin was armed; and that she had 'a lighted cigarette just prior to the time that (she) left (defendants' apartment),' suggesting thereby, in some way, a friendly parting.
We have previously considered the requisite quantum of evidence to meet a challenge of 'improbability.' In People v. Headlee, 18 Cal.2d 266, 267--268, 115 P.2d 427, we noted that 'To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.' More recently, in People v. Thornton, 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 477, 523 P.2d 267, 277, we reaffirmed the following language from People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758:
Viewed in the light of the foregoing expressions, it cannot be said that the prosecutrix' testimony is inherently improbable. She testified that, although she was aware of the telephone by the grocery store, she did not think of it and planned to call the police from her home. She explained...
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...i.e., that he has received a "controlled substance."[19] . Hawkins v. United States, 103 A.3d 199, 201 (D.C. 2014); People v. Mayberry, 542 P.2d 1337 (Cal. 1975).[20] . See Commonwealth v. Simcock, 575 N.E.2d 1137, 1141 (Mass. App. Ct. 1991).[21] . Notice the anomaly in the common law appro......
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