People v. Perez

• Decision Date: 08 February 1967
• Docket Number: Cr. 9676
• Citation: 65 Cal.2d 709,423 P.2d 240,56 Cal.Rptr. 312
• Court: California Supreme Court
• Parties: , 423 P.2d 240 The PEOPLE, Plaintiff and Respondent, v. Serglo PEREZ, Defendant and Appellant. In Bank

Page 312

56 Cal.Rptr. 312

65 Cal.2d 709, 423 P.2d 240

The PEOPLE, Plaintiff and Respondent, v. Serglo PEREZ, Defendant and Appellant.

Cr. 9676.

Supreme Court of California,

In Bank.

Feb. 8, 1967.

Reginald D. Armstrong, Compton, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Leslie F. Bell and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Sergio Perez was found guilty by a jury of rape (Pen.Code, § 261, subd. 4) ¹ and first degree burglary (Pen.Code, § 459). A motion for a new trial was denied, and he was sentenced to prison for the burglary. ² He has appealed, contending that the prosecutrix's testimony is inherently improbable and that evidence inadmissible under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, requires reversal of the judgment. We have concluded that neither contention can be upheld.

Mrs. Dorothy Holder, the complaining witness, testified to the following effect: About 3 a.m. on January 6, 1964, she was sewing in the living room of her home on Millbury Avenue in La Puente. Her four children, ranging in age from 7 to 11, were asleep in their bedrooms, and her husband, a truckdriver, was away on a trip. She put on the dress she was sewing and went into a bedroom to look in the mirror. As she turned around, she saw defendant, a man she had never seen before, standing behind the door. She let out a loud yell, and defendant told her to stop screaming. He stated that he had a knife in his pocket, but she did not see it. In response to questions by defendant she said that her husband was asleep on the other side of the house. After defendant pushed her onto the bed she told him she heard a noise, and he went over to the door to investigate. At this time she thought of trying to escape through the window but was afraid her children would wake up and did not want them to see 'it.' Defendant then had sexual intercourse with her, to which she submitted out of fear for her own safety and that of her children. Afterwards he said, 'I know * * * you're going to call the cops.' She promised not to do so if he would not return, and he said, 'Don't, because I'll come back and get you, because I can get sent up for this.' He then left through a window.

Mrs. Holder further testified that the next morning around 7 she was awakened by the doorbell and found defendant at the door, but when she ordered him to leave he did so, and she watched him drive away in a car. After her children left for school she went to a neighbor's house and told her what had happened. The neighbor testified that Mrs. Holder was 'very white' and 'very emotionally upset.' They went to buy shells for a rifle that Mrs. Holder had at her home. That night she was again awakened by the doorbell. She looked out the window, saw defendant's car, and called the sheriff's office. An officer testified that when he answered the call Mrs. Holder opened the door with a rifle in her hand and that the door had been barricaded with a chest. Defendant was apprehended serveral blocks from Mrs. Holder's home and was placed under arrest. At the scene of the arrest and subsequently at the sheriff's station he made statements, which will be discussed later herein.

Defendant took the stand in his own defense and testified as follows: He first met Mrs. Holder at a bar shortly after midnight on a Saturday or Sunday during the first part of December 1963. He was at the bar by himself and did not know the bartender or any of the patrons. Mrs. Holder was also alone, and he bought her a few whiskey sours. He offered to drive her home, and en route they parked and had sexual intercourse in the car. He told her about his wife, and she said that she was also married but that her husband was away. She invited defendant to her house, and at her home they again had sexual intercourse. She gave him her telephone number, and on January 6, 1964 (the date of the alleged rape), he telephoned her and asked if he could come to her home, and she replied that he could. He drove to her house, and she voluntarily had sexual intercourse with him. Afterwards she asked if they were going to see each other again, and he told her he did not think that it was a good idea because he did not want to get caught. She got mad, and he left. He returned to the house that morning about 7 because he had lost his money and thought it had fallen on the bedroom floor. Mrs. Holder slammed the door in his face. About 3 a.m. the next morning he telephoned her and asked if she had found the money, and she replied that she had but for him not to bother her. He then drove to her house in an attempt to get his money.

In rebuttal Mr. Holder, the husband of the prosecutrix, testified that he had been home with his wife each Saturday and Sunday night during December 1963 and had not seen defendant at their home. Mr. Holder and his wife also testified that she never drank alcoholic beverages because she had a bleeding ulcer.

In urging that Mrs. Holder's testimony is inherently improbable, defendant points to evidence such as her testimony that she never saw the knife, did not attempt to escape, and did not complain to the police until the third time defendant came to her home. However, these matters do not show that her testimony is inherently improbable. The applicable rule has been thus stated, 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimomy which merely discloses unusual circumstances does not come within that category. (Citation.) To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. (Citing cases.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (Citation.)' (People v. Lyons, 47 Cal.2d 311, 319--320, 303 P.2d 329, 334; People v. White, 43 Cal.2d 740, 747--748, 278 P.2d 9).

People v. Carvalho, 112 Cal.App.2d 482, 246 P.2d 950, relied upon by defendant, is unlike the instant case. There a jury found the defendant guilty of kidnaping his estranged wife, and on appeal the court concluded that the testimony of the prosecutrix was 'fantastic' and the circumstances testified to by her were more than unusual. It appeared, among other things, that the prosecutrix had abundant opportunity to escape and to inform others of her claimed predicament but made no effort to do so, that on the occasion of the asserted kidnaping she and the defendant began 'making love' and had sexual intercourse, that she did not discuss the alleged crime with the police until a month later, and that on one occasion after the asserted crime the defendant came to her house for dinner.

The prosecution introduced evidence of statements by defendant to officers (1) at the scene of his arrest and (2) at the sheriff's station. Defendant contends that the latter statements were inadmissible under Escobedo v. State of Illinois, supra, 378 U.S. 478, 84 S.Ct. 1758. ³ He makes no such contention with respect to the former; however, as will develop, both must be considered.

With respect to the statements at the scene of defendant's arrest the record discloses the following:

At 4:14 a.m. on January 7, 1964, Officer Johnson received a 'prowler call,' and he and Officer Lewis thereupon went to Mrs. Holder's home. She made a 'complaint (to them) of a sexual nature,' described the offender as a male of Mexican descent and heavy build, and stated that he had just left when the officers arrived. Before they finished getting a complete report from her they received a request from Officer Schwager for assistance with respect to a 'possible suspect.' Schwger, who had been driving towards Mrs. Holder's home in response to the call, had observed defendant driving on Millbury Avenue about one block from Mrs. Holder's home, had seen no other vehicles operating on the street, and after following defendant for several blocks had stopped him.

When Johnson and Lewis joined Schwager a conversation was held with defendant that lasted from 5 to 15 minutes. Schwager asked defendant 'what he was doing on the street where he was coming from.' According to the officers, defendant said that he 'dropped' a friend off on Millbury Avenue, and, when asked if he knew the address, he replied that he did not. In response to other questions defendant said that the friend had a girl friend who lived there that defendant did not know where she lived or her name or where his friend lived, and that he helped his friend push his friend's car. Defendant was also asked if he knew anybody on the street and if he had been on the street before, and he answered 'No' to both questions. Johnson testified that defendant was placed under arrest 'at this time.' The officers returned to Mrs. Holder's home and got 'a report on this incident' from her and then took defendant to the sheriff's station.

At the trial defendant admitted having made some of the statements, such as that he had been 'pushing a friend down the street' and did not know anybody on Millbury Avenue, and testified that the statements were untrue. He further testified as follows: When he was stopped by Schwager the officer told him to get out of the car and put his hands on the hood. He thought Schwager drew a gun on him. He asked what was wrong, and Schwager said, 'You know what's wrong.' After the other officers arrived defendant was 'patted down.' Then the officers started questioning him. They were 'hollering and screaming about burglary' and were 'pu...