People v. Pendleton

Citation158 Cal.Rptr. 343,599 P.2d 649,25 Cal.3d 371
Decision Date14 September 1979
Docket NumberCr. 20765
CourtUnited States State Supreme Court (California)
Parties, 599 P.2d 649 The PEOPLE, Plaintiff and Respondent, v. George Wayne PENDLETON, II, Defendant and Appellant. In re George Wayne PENDLETON, II on Habeas Corpus.

Corinne S. Shulman, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb, II, William R. Pounders and Sandy R. Kriegler, Deputy Attys. Gen., for plaintiff and respondent.

CLARK, Associate Justice.

Defendant was convicted of first degree burglary (Pen.Code, §§ 459, 460), kidnaping (Pen.Code, § 207) and rape (Pen.Code, § 261). He was sentenced to state prison for the term prescribed by law on each count, the terms to run concurrently. Execution of sentence on the kidnaping and rape counts was stayed pending appeal, the stay to become permanent upon completion of the burglary term. The judgment will be affirmed.

Defendant makes three contentions on appeal. 1. The trial court committed prejudicial error in admitting evidence of defendant's prior sex offenses, and in instructing the jury concerning the limited purposes for which the evidence might be considered. 2. Defendant was denied effective assistance of counsel at trial because he was represented by a partner in a law firm which acted as city attorney for another community and, although defendant's attorney did not, other members of the firm exercised prosecutorial responsibilities in behalf of that community. (See Gov.Code, § 41805; People v. Rhodes (1974) 12 Cal.3d 180, 115 Cal.Rptr. 235, 524 P.2d 363.) 3. The trial court erred in refusing defendant's request to instruct the jury on unauthorized entry (Pen.Code, § 602.5) as a lesser offense included within the crime of burglary. In his habeas corpus petition, which the Court of Appeal consolidated with the appeal, defendant simply repeats his Rhodes argument, supporting his allegations with evidence outside the record on appeal.

Charged Offenses

Kathy D. and Cindy H. were approached by defendant, an acquaintance of Cindy's, in a college snack bar. Cindy introduced him to Kathy. Later that evening, again encountering Cindy, defendant asked her whether she could arrange a date for him with Kathy. When Cindy replied that Kathy had a boyfriend defendant appeared disappointed, stated "I want to be all she thinks about," and gave Cindy his card to pass along to Kathy. Cindy remarked that defendant lived on the same street as Kathy.

One afternoon two days later, without having knocked or otherwise requested admission, defendant appeared in the living room of the apartment Kathy shared with Marcia T. He gave Kathy a rose and asked her to accompany him to a nearby beach. When Kathy declined defendant became very insistent, but finally departed, saying they would get together another time.

Two weeks later Kathy and Marcia retired for the evening, locking the front door of the apartment and closing the doors of their separate bedrooms. During the very early hours of the morning Kathy heard her bedroom door open. The intruder, whom she recognized as defendant, walked over to her bed, sat down and kissed her, saying he wanted to take her somewhere and talk. When Kathy replied she was not going anywhere with him defendant began choking her, saying that if she did not go willingly he would knock her out and take her anyway. Believing she would be incapable of physically resisting defendant, as he is very large and muscular, Kathy agreed. As Kathy got out of bed defendant picked her up and warned her not to make any noise. He then carried her to his car, drove to his nearby house and there twice forcibly raped her.

Prior Offenses

Defendant admitted entering Kathy's bedroom while she was sleeping, driving her to his house and there engaging in sexual intercourse with her. However, he claimed he knocked on the front door of Kathy's apartment, thought he heard someone invite him in, and found the door unlocked. He denied having entered the apartment with intent to rape or kidnap Kathy, claiming instead that her conduct led him to believe she accompanied him willingly and willingly had intercourse with him. As defendant placed his intent in issue, the trial court admitted evidence of his prior sexual offenses against Clarice S. and Kathleen G., instructing the jury they might consider the evidence not only on the question whether defendant entered Kathy's apartment with intent to commit rape but also in testing Kathy's credibility.

Three years prior to the present incident, Clarice S. woke up early one morning to find defendant caressing her face. She asked him who he was and how he had gotten in the locked house. Defendant grabbed her, saying he wanted to make love to her. When Clarice tried to run defendant tackled her, falling to the floor on top of her. As defendant straddled Clarice her daughter ran at him with a pogo stick, causing him to flee.

Four years prior to the present incident, Kathleen G. was awakened early one morning by the sound of a window being opened. As Kathleen was dialing the police the intruder, defendant, told her to put down the phone, adding that he would not hurt her if she gave him what he wanted. Kathleen replied that defendant could take her money and valuables. He responded by throwing Kathleen to the floor and sitting on her while choking and slapping her. He tore her robe at the shoulder. Kathleen was "struggling to get away, screaming, scratching, biting him, anything (she) could." During the struggle a car drove into the alley, prompting defendant to flee.

I

The general principles concerning the admissibility of evidence of prior offenses in sex offense cases were exhaustively restated in People v. Thomas (1978) 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433 and need not be repeated to properly frame the issues here. Defendant simply contends his prior offenses were not sufficiently similar to the present offense to render evidence concerning them admissible on the issue of intent. This contention clearly lacks merit.

The offenses against Kathy, Clarice and Kathleen were similar in the following significant respects: (1) the entry into the victim's residence was unauthorized; (2) the exterior doors of the victim's residence had been locked; (3) the entry occurred during the early morning hours when the victim was asleep; (4) defendant spoke to the victim of himself and/or his parents; (5) defendant knew friends or relatives of the victim; 1 (6) defendant physically attacked the victim; and (7) none of the victim's property was taken. There were the following additional similarities between the offenses against Kathy and Kathleen: (1) the victim was in her late teens; and (2) defendant warned the victim not to report the incident to the police or friends.

Defendant further contends the evidence of his prior offense against Kathleen did not support the conclusion he assaulted her with intent to commit rape, and thus did not tend to prove he entered Kathy's apartment with intent to commit rape. This contention also clearly lacks merit. "When a strange man enters a woman's bedroom, covers her mouth with his hand, grasps her wrist while she screams and kicks, releases her when she bites his hand, and makes no effort to take any property, it is reasonable to infer that he intended to commit rape . . . ." (People v. Nye (1951) 38 Cal.2d 34, 37, 237 P.2d 1, 3; see People v. Dobson (1970) 12 Cal.App.3d 1177, 1180-1181, 91 Cal.Rptr. 443.) Defendant, a stranger to Kathleen, entered her bedroom, told her she would not be hurt if she gave him what he wanted, attacked her when she offered him money and valuables, and, upon being frightened away, left without taking any property. Admittedly, defendant did not kiss Kathleen, remove her panties, touch her private parts or engage in certain other conduct commonly associated with attempted rape. However, his failure to do so tells us more about Kathleen's pluck than about defendant's intentions. When asked whether defendant "had the opportunity to do something sexual to you if he wanted to," Kathleen testified: "I would have to say no, not really, because I was fighting him the whole time."

Assuming for the sake or argument that the evidence of his prior offenses was admissible on the issue of his intent in committing the charged offense, defendant contends the jury should not have been instructed they could also consider that evidence in testing Kathy's credibility.

In People v. Thomas, supra, 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433, this court disapproved of several Court of Appeal cases insofar as they "suggest(ed) that evidence of prior sex offenses involving victims other than the prosecuting witness is generally admissible for the purpose of corroborating such witnesses Without regard to the remoteness of the prior offenses or the lack of close similarity to the charged offense." (Id. at p. 468, 143 Cal.Rptr. at p. 220, 573 P.2d at p. 138, italics added.) "Were the theory (of the disapproved cases) to be held applicable in All sex offense cases, without regard either to remoteness or similarity, the 'corroboration' exception," this court pointed out, "would absorb the general rule of exclusion in its entirety, permitting introduction of all prior sex offenses for purposes of corroborating the prosecuting witness." (Id. at pp. 468-469, 143 Cal.Rptr. at p. 221, 573 P.2d at p. 439.) However, this court reaffirmed the principle that "evidence of similar, nonremote offenses involving similar victims, declared admissible in (People v. Kelley (1967) 66 Cal.2d 232, 57 Cal.Rptr. 363, 424 P.2d 947) and (People v. Cramer (1967) 67 Cal.2d 126, 60 Cal.Rptr. 230, 429 P.2d 582) to show a common design or plan, may also assist in corroborating the prosecution witness' version of events." (Id., ...

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