People v. Monk

• Decision Date: 20 July 1961
• Docket Number: Cr. 6791
• Citation: 56 Cal.2d 288,14 Cal.Rptr. 633,363 P.2d 865
• Court: California Supreme Court
• Parties: , 363 P.2d 865 PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Wesley MONK, Defendant and Appellant.

Page 633

14 Cal.Rptr. 633

56 Cal.2d 288, 363 P.2d 865

PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Wesley MONK, Defendant and Appellant.

Cr. 6791.

Supreme Court of California, In Bank.

July 20, 1961.

Rehearing Denied Aug. 16, 1961.

Malcolm H. Mackey, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

WHITE. Justice.

In an amended information filed by the District Attorney of Los Angeles County defendant was accused in count I of the offense of kidnaping (Pen.Code, § 209) Rose Caroline Schaefer for the purpose of robbery, and subjecting her to bodily harm while defendant was armed with a deadly weapon, to wit, a six inch revolver. Count II charged defendant with robbing Miss Schaefer of a purse and $38 in money (Pen.Code, § 211). In count III defendant was accused of kidnaping (Pen.Code, § 209) Katherine A. Sorena for the purpose of robbery and subjecting her to bodily harm. Count IV alleged the crime of robbery (Pen.Code, § 211) in that defendant, by means of force and fear took from Mrs. Sorena a purse and $6 in money. By counts V and VI defendant was accused in the alternative with the crime of rape committed against Mrs. Sorena, in violation of subdivision 3 or, in the alternative, of subdivision 4 of Penal Code, § 261. Count VII charged a violation of section 288a upon the person of Mrs. Sorena. It was further alleged in the information that defendant had suffered a prior felony conviction for the crimes of forgery and burglary for which he had served a term of imprisonment in the state prison.

Defendant pleaded not guilty to all counts of the amended information, and not guilty by reason of insanity. He admitted the prior conviction charged against him.

Trial by jury was duly waived on all issues raised by both pleas, and the cause proceeded to trial before the court sitting without a jury. Defendant was adjudged guilty of the offenses charged in counts I, II, III, IV, VI and VII, and not guilty of the offense charged in count V.

As to counts I and III the court found that Miss Schaefer and Mrs. Sorena both suffered bodily harm and that at the time defendant committed the offense against miss Schaefer he was armed with a deadly weapon. The court also found the robbery of Miss Schaefer charged in count II, and of Mrs. Sorena charged in count IV, to be robbery of the first degree.

The issue of defendant's sanity was submitted to the court on the reports of the two psychiatrists appointed by the court pursuant to the provisions of section 1027 of the Penal Code. The court found that at the time of the commission of the aforesaid offenses defendant was legally sane. Defendant's motions to appoint a third psychiatrist and to permit him to present testimony of a psychiatrist of his own selection were denied, but as will hereafter appear the court on motion for a new trial admitted into evidence a medical report from a psychiatrist who was obtained by defense counsel. Defendant's motion to reduce the death penalty to life imprisonment without possibility of parole and his motion for a new trial were also denied. Judgment of death in the manner prescribed by law was imposed for the offenses charged in counts I and III and judgment of imprisonment in the state prison for the terms prescribed by law was pronounced for the offenses alleged in counts II, IV, VI and VII. This appeal is automatically before us pursuant to the provisions of section 1239(b) of the Penal Code.

As to the factual beckground surrounding this prosecution the record reveals that on March 14, 1960 Miss Rose Schaefer was returning to her home from a shopping center when defendant came up to her, pointed a gun at her, and said: 'This is a stick-up. Make a sound and you're dead.' He guided her with the gun a distance of six to eight feet into a parking area where he asked her if she had a wallet. She indicated she did. He then forced her into an automobile, and as she entered he told her to throw her wallet into the back of the vehicle. She complied and never recovered the wallet which contained about $16 or more. Defendant drove the car while holding a gun against her. She said, 'I want out of the car. You said this was a stick-up and you have my wallet. Let me out.' He replied, 'There is more to come. You use your imagination,' and subsequently told her, 'I want what you have between your legs.' Shortly thereafter when defendant slowed the car down for a red traffic light Miss Schaefer threw herself out of the car, which was still moving, and received a number of cuts and bruises in the fall. She suffered from a loss of blood, was treated at a hospital, and was unable to return to work for about a week. Defendant had driven her about five or six miles before she escaped.

On April 19, 1960 defendant's second victim, Mrs. Katherine Sorena, was driving her automobile after night fall accompanied by her three year old son when she began to have trouble with the lights on her car. She got out of the vehicle to check the lights; defendant came over and after looking at the car told her he could not fix it. When she thanked him and said she would call her husband, he stated, 'You and your boy want to get home safe? * * * Well, then, just do as I tell you and you will be all right.' She got back into her car and started it. Defendant got into his car and stayed bumper to bumper with her, with his lights turned up so that they blinded her. She got out of the car intending to make a telephone call, but defendant kept repeating in a threatening tone that if she wanted to get home safely to do as he told her. He guided them into his car and then drove in the direction of her home. When they were near her house he pressed a screwdriver against her back, continued driving and told her to 'strip.' She screamed and attempted to attract attention. He pulled her body close to him and repeatedly beat her about the face and pulled her hair. Her nose and jaw were broken, and blood began to pour from her face. He drove to a spot about 1 1/2 miles from her home and took her into a shack while threatening to kill her if she made a sound. Her son, who was crying, was with them. Defendant forced her to commit an act denounced by section 288a of the Penal Code, and she 'passed out.' She was brought back to consciousness when he hurt her by putting his finger inside her vaginal cavity. She lost consciousness again and when she came to he was having intercourse with her. Subsequently he led her and her son to the car while pressing a knife against her back. He drove them to a schoolyard where he let them out. On the way he asked her how much money she had, and she told him about six or seven dollars and said, 'Just take anything else I have, but please take me home.' Defendant replied, 'All right. Just leave the purse where it is. When I am through with it, I will throw it back on your lawn.' He still had the knife with him. He left the purse, which contained about six dollars, in the car because she was in fear.

Defendant's contention that the evidence is insufficient to support his conviction on the two counts of kidnaping for the purpose of robbery in violation of section 209 of the Penal Code is without merit. ¹ With regard to count I, wherein Miss Schaefer was named as the victim the evidence, as we have seen, discloses that defendant pointed a gun at her, told her 'This is a stick-up,' and guided her with the gun a distance of six to eight feet to his car where he directed her to throw her wallet into the rear of the vehicle. The cases hold that it is the fact, not the distance, of forcible removal which constitutes kidnaping in this state. People v. Wein, 50 Cal.2d 383, 399-400, 326 P.2d 457 (victims forced to move from a few feet up to more than 50 feet); People v. Chessman, 38 Cal.2d 166, 190-193, 238 P.2d 1001 (victim forced to move 22 feet); People v. Enriquez, 190 Cal.App.2d 481, 11 Cal.Rptr. 889 (victim forced to move 6 feet). The offense of kidnaping for the purpose of robbery was thus complete when defendant forced Miss Schaefer to walk several feet to his car. Moreover, it has been held that where a kidnaping occurs after the actual perpetration of a robbery such kidnaping may be kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm. People v. Kristy, 4 Cal.2d 504, 507-508, 50 P.2d 798; People v. Randazzo, 132 Cal.App.2d 20, 23-24, 281 P.2d 289. In the instant case Miss Schaefer was near a shopping center when defendant accosted her, and it could reasonably be inferred by the trial court that he forced her to accompany him in his car in order to prevent her from turning in an immediate alarm.

With reference to count III in which Mrs. Sorena was named as the victim, defendant argues that she voluntarily gave her purse to him and thst his purpose was rape rather than robbery. He sets forth testimony by Mrs. Sorena at the preliminary hearing, which was admitted at the trial for impeachment purposes, to the effect that she had told defendant to take her money and leave her alone and that as far as she could remember she was the first one that told him he could take anything she had. On direct examination at the trial, however, Mrs. Sorena testified that defendant asked her how much she had, that she replied about six or seven dollars and told him, 'Just take anything else I have, but please take me home,' and he answered 'All right. Just leave the purse where it is. When I am through with it, I will throw it back on your lawn.' In response to a question by the court as to who mentioned the word 'purse' or 'money' for the first time, Mrs. Sorena stated defendant asked her how...