People v. Olds, Cr. 5899

• Decision Date: 27 September 1957
• Docket Number: Cr. 5899
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lloyd Eli OLDS, Defendant and Appellant.

Page 881

315 P.2d 881

154 Cal.App.2d 78

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lloyd Eli OLDS, Defendant and Appellant.

Cr. 5899.

District Court of Appeal, Second District, Division 2, California.

Sept. 27, 1957.

David C. Marcus, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., James Maupin, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendant was convicted of violating section 286, Penal Code. He appeals from the order denying his motion to dismiss under section 1203.4, Penal Code, and from the judgment. ¹

At approximately 10:00 P.M. on March 9, 1954, ² Ronald, aged 15 was standing on a street corner in Long Beach, 'leaning against the bus sign,' when defendant drove up and inquired whether he 'would like a ride.' Ronald accepted the invitation. After driving around the area for a little while defendant produced a half pint bottle of bourbon that was two-thirds full and two cans of beer. While continuing their driving, defendant and Ronald consumed the bourbon and beer. At about 11:00 o'clock they decided to replenish their supply and so stopped for that purpose near a liquor store on Long Beach Boulevard in North Long Beach. Defendant told Ronald to get out of the car and walk down to the middle of the block while he got the 'booze' so that no one would see a minor in the car when he came out with it. Defendant picked Ronald up and inquired 'if there was a nice place to go * * * whith no police.' Ronald suggested a place to which they drove and parked. There they proceeded to consume the liquor defendant had just purchased. While they were sitting there defendant asked Ronald how to get to the Los Angeles River. Ronald gave him the directors but does not remember what he told defendant because, to quote Ronald, 'By that time I was drunk.' Defendant proceeded to drive to the river and park. Defendant helped Ronald out of the car and took along a blanket. They walked down to the riverbed and lay on the blanket. It was there that defendant committed the act denounced by section 286 of the Penal Code. During this experience Ronald variously described his condition as follows: 'I was unconscious and dazed * * * I was hazy' and 'Everything was going around in circles' and that he did not have much control over his physical condition. He further testified that when defendant started getting on top of him he protested by saying, 'No, no, no * * *.' Defendant drove Ronald back to 'about two houses' from his home where he let him out. In the meantime defendant had secured Ronald's telephone number for the purpose of calling him the next evening to ascertain whether they could go out together, presumably on a double date with some girls. Defendant was to use the name 'Jerry.'

Ronald's mother testified he arrived home at 1:15 A.M. When she opened the door 'he fell on the floor;' she thought he was sick and had vomited; 'he was moaning.' At first it did not occur to her that he had been drinking; she thought he had been hurt. Because of that she called the police. Later she 'realized he was drunk.' Ronald's mother also called Dr. Kronenberg, who arrived about 3:00 o'clock that morning. He testified that Ronald's 'breath smelled very heavily of alcohol;' that 'his activity was that of an acutely intoxicated individual.' When the doctor saw Ronald the next day 'he complained of mild rectal distress.' Examination disclosed 'a small rectal fissure,' that is, a 'small crack in * * * the lining of the rectum' approximately a quarter of an inch in length. Such condition is 'usually' of traumatic origin.

Officer Gautt of the Long Beach Police Department responded to the call of Ronald's mother. He reached the home in a few minutes; he found Ronald 'lying on the floor in the living room.' He was rolling side to side and vomiting. 'He appeared to be in quite a drunken stupor.' The officer 'could not get any intelligent conversation out of him.'

About 6:00 P.M. the following day defendant telephoned Ronald's home. Arrangements were made for defendant to pick him up at a particular corner later that evening. Police officers were near-by. Defendant drove up, opened the car door and Ronald talked with him a few minutes and told defendant he could not go with him that night. Defendant replied, 'Oh, yes, you can' or something like that. At that point the police officers arrested defendant.

In seeking a reversal defendant contends that (1) Ronald was an accomplice; that in order to sustain the conviction his testimony must be corroborated under section 1111, Penal Code, and that there is no corroboration; (2) the court unduly limited the cross-examination of Ronald. There is no merit in either of these contentions.

'To be an accomplice one must knowingly, voluntarily, and with common intent unite with the principal offender in the commission of the crime.' People v. Lamb, 134 Cal.App.2d 582, 585, 285 P.2d 941, 943; People v. Shaw, 17 Cal.2d 778, 799, 112 P.2d 241. This requires consent, which is defined in People v. Dong Pok Yip, 164 Cal. 143, at page 147, 127 P. 1031 at page 1032, as follows: 'Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. 'Consent' differs very materially from 'assent'. The former implies some positive action and always involves submission. The latter means mere passivity or submission which does not include consent.' In People v. Westek, 31 Cal.2d 469, at page 475, 190 P.2d 9, at page 13, which concerned a violation of the same section of the Penal Code here involved, the court pointed out that 'the jury apparently accorded full credit to the boys' testimony that they did not 'willingly' join in the criminal acts, and so concluded that their part therein constituted an 'assent' rather than a 'consent.' Consequently the boys, by virtue of the evidence accepted by the jury as true, were not accomplices and corroboration of their testimony was not necessary.' In People v. Featherstone, 67 Cal.App.2d 793, at page 796, 155 P.2d 685, at page 687, which also involved a violation of this same code section, the court observed that 'If he (a fifteen year old boy) was not an accomplice, corroboration of his testimony was not necessary.'

It was for the arbiter of the facts to determine whether Ronald consented to and wilfully joined in the criminal act defendant committed. Of course on appeal we must accept as established every fact in harmony with the judgment that finds adequate support in the evidence.

Applying these principles to the testimony herein recited, it is apparent that the evidence amply supports the implied finding that Ronald was inebriated to such an extent that he did not wilfully participate in the criminal act of defendant and that his part therein constituted an assent rather than consent. Ronald, therefore, was not an accomplice. People v. Westek, supra; People v. Dong Pok Yip, supra; People v. Lamb, supra. Consequently corroboration of his testimony was not required. People v. Westek, supra; People v. Featherstone, supra.

Defendant vigorously attacks the credibility of Ronald and argues that his testimony is untrustworthy. Those were matters for the determination of the trial court. Such arguments are of no assistance on appeal. We can neither reevaluate the credibility of the witness nor reweigh the evidence.

Conceding, arguendo, that Ronald was an accomplice and that his testimony must be corroborated, the record contains ample evidence to satisfy that requirement. The basic rule in this respect is stated in People v. MacEwing, 45 Cal.2d 218, at page 224, 288 P.2d 257, at page 260. 'The corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be...