People v. Minkowski

• Citation: 23 Cal.Rptr. 92,204 Cal.App.2d 832
• Decision Date: 25 June 1962
• Docket Number: Cr. 4066
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William Louis MINKOWSKI, Defendant and Appellant.

Page 92

23 Cal.Rptr. 92

204 Cal.App.2d 832

PEOPLE of the State of California, Plaintiff and Respondent, v. William Louis MINKOWSKI, Defendant and Appellant.

Cr. 4066.

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

June 25, 1962.

Leo R. Friedman, San Francisco, Meyer Scher, Sunnyvale, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Inerny, Derald E. Granberg, Deputies Atty. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

Defendant was indicted by the grand jury on five separate counts of rape (Pen.Code, § 261), two of which charged violations of subdivision 1 of section 261 ('[w]here the female is under the age of eighteen years') and three of which charged violations of subdivision 5 of section 261 ('[w]here * * * [the female] is at the time unconscious of the nature of the act, and this is known to the accused'). The indictment charged the commission of these acts upon three young women who, for reasons obvious hereafter, will be refered to as Miss X, Miss Y and Mrs. Z. Defendant was charged in count one with statutory rape (§ 261, subd. 1) and in count two with rape (§ 261, subd. 5) committed on Miss X during the week following January 7, 1961; in count three with statutory rape (§ 261, subd. 1) and in count four with rape (§ 261, subd. 5) committed on Miss Y 'prior to March 15, 1961, and within three years last past'; and in count five with rape (§ 261, subd. 5) committed upon Mrs. Z on or about February 27, 1961. Each of the five counts charged prior convictions of abortion (Pen.Code, § 274) and conspiracy to commit abortion (Pen.Code, § 182).

Defendant's motion to set aside the indictment (Pen.Code, § 995) was denied. His petition for a writ of prohibition was denied by this court, and his subsequent petition for hearing of such petition by the Supreme Court was also denied.

Since the grand jury testimony disclosed several acts of intercourse as to the three prosecuting witnesses, defendant, at the commencement of the trial moved that the prosecution elect as to which particular act it was relying on. The prosecution thereupon conceded that counts one and two (with Miss X) involved the same act and elected to rely on the first act of intercourse shown to have taken place within the week following January 7, 1961. In respect to counts three and four (with Miss Y) the prosecution elected to rely on the last act of intercourse shown to have taken place on or about February 2, 1961. On count five (with Mrs. Z) the prosecution stood on the date alleged in the indictment.

A jury found the defendant guilty on count two (Pen.Code, § 261, subd. 5--Miss X) and count five (Pen.Code, § 261, subd. 5--Mrs. Z) but not guilty on counts one, three and four. Defendant's motion for a new trial was denied. His motion for probation was denied and he was sentenced to imprisonment for the term provided by law. He has appealed from the judgment of conviction on counts two and five and from the order denying his motion for a new trial.

Defendant contends here that (1) there being insufficient evidence before the grand jury to establish the corpus delicti independent of his extrajudicial statements, he was indicted without reasonable or probable cause as to counts two and five, and the court was without jurisdiction to try him and erred in denying his motion to set aside the indictment; (2) the court erred in admitting, over defendant's objections, certain testimony of two police officers; (3) as to count two, the evidence failed to establish the act elected and relied on by the prosecution; (4) the court erred in giving and in refusing to give certain instructions; and (5) the verdicts of guilty were coerced. We have concluded that none of the foregoing contentions have merit and that the judgment and the order denying motion for new trial should be affirmed.

The defendant was a physician with offices in Palo Alto, California. On January 7, 1961, Miss X, who was 16 years old, accompanied by her mother went to the defendant's office for the treatment of menstrual cramps. She and her family had known the defendant for about three and one-half years. The two families lived on the same street about three houses apart. The defendant had previously treated Miss X and her parents. The two families also had some social contacts.

Miss X removed her clothing and put on a hospital gown. She then lay on her back on a table with her feet in stirrups while the defendant examined her. No one else was present. The defendant told her that a series of tests were needed to find out what was wrong and clear up the problem.

She returned about a week later for the tests. She had apparently been told it would be a vaginal-smear test. She went into the examination room, removed her clothing and put on a hospital gown. She and the defendant were the only persons in the room. He told her to lean over a table with her feet spread apart, giving as a reason that it was an easier position for the test. As she did so, the gown would slip off her shoulders. While she was in this position, the defendant used an instrument for a few seconds, and then something else. The first object was cold and 'the second time it wasn't at all.' The second object 'didn't pinch like the first one did. It wasn't as uncomfortable.' The second object 'kept coming in and out' of her vagina; '[i]t didn't go in and stay like the first one did.' During the examination the defendant exercised her breasts, telling her it was necessary to help stimulate the glands. He used both hands doing this, while the second object was being inserted during the second part of the test. Right before the second part of the test and at the end, she thought she heard a zipper. She also felt clothing against the back of her legs during the second part of the test. She estimated that the whole test would last about three minutes.

Miss X returned to the defendant's office for similar examinations on six or eight other occasions. The last one took place on February 20, 1961. During all examinations, except the one on January 7th, defendant pulled back on her hips several times. Several times during these examinations he wiped Miss X off and then wiped up the floor. After the tests he would tell her to go home and be sure to wash off because the test might cause an infection or she might be allergic to it in some way. Several times during the second part of the test, she thought she felt 'a throbbing, or something' in the vaginal area.

On Sunday evening, February 19, which was the day before the last examination, the defendant came to Miss X's home and talked to her and her mother about commencing a second series of tests. He first asked if she could come that evening and later made an appointment for her to come in the following evening, February 20. Within a week after the last test, he again went to her house, attempting to have her take another test that night. She told him she had a babysitting job until 9:30 or 10:00 p. m. and did not go, although he indicated to her it would not be too late at that hour. He also talked to her mother about it. This conversation took place after Miss X had complained to her mother about the defendant's conduct on February 21, the day following the last examination. It was after the last examination that Miss X was sure that the defendant was using himself during the second part of the test.

Mrs. Z was 19 years of age at the time of the events involving the defendant. She was married in January 1961 but at the time of the trial in June 1961 had separated from her husband and was living with her parents. She testified that she went to the defendant for treatment for menstrual cramps on some six to eight occasions, beginning in November 1960 and ending on February 27, 1961. The tests took place about once every two weeks.

On February 27, 1961, the defendant had her undress and put on a white gown. He then had her take a position standing at the examination table, with her legs apart, facing away from him and more or less bent over. This caused the gown to fall open. He first inserted a metal instrument and then an instrument which was somewhat warmer than the first. He then wiped her off and wiped off the floor. During the examination he had one of his hands on her stomach and the other on one of her breasts. He told her that the purpose of this was to stimulate her in a way to activate certain hormones for the vaginal smear. With his hand on her stomach, the defendant pulled her toward him. She felt his pants against her buttocks and heard a zipper. The examination took less than five minutes. The witness told the defendant she was financially unable to continue with the examination, whereupon he answered that it would not cost her anything as he was interested in seeing how her system changed from the last examination. He told her when she got home to douche immediately. Within a short time after she arrived home, he called to ask if she had followed his directions.

Mrs. Z testified that on all previous visits to the defendant in this series of tests the examinations were 'roughly--similar * * *.' It was not until the last visit that she suspected anything. On cross-examination she testified that it was on this visit that she could feel the defendant's penis inside of her and 'knew that it was him and not an instrument.' ¹

Sergeant Philip Ray of the Palo Alto Police Department testified that he and Captain Guy Wathen went to defendant's office on March 1, 1961, with a warrant issued upon a complaint charging defendant with contributing to the delinquency of a minor. Ray testified to the following admissions made by the defendant to the two officers: that after her first examination, the defendant had Miss X stand in the position we have described; that he first used on her a proctoscope, an instrument usually used for rectal examinations, because it was shaped like a penis; that after he used the...