People v. Perez

• Decision Date: 21 June 1973
• Docket Number: Cr. 16699
• Citation: 510 P.2d 1026,9 Cal.3d 651,108 Cal.Rptr. 474
• Court: California Supreme Court
• Parties: , 510 P.2d 1026 The PEOPLE, Plaintiff and Respondent, v. Ernest PEREZ, Defendant and Appellant.

Page 474

108 Cal.Rptr. 474

9 Cal.3d 651, 510 P.2d 1026

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

Cr. 16699.

Supreme Court of California In Bank.

June 21, 1973.

Richard H. Levin, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., and Herbert L. Ashby, William E. James, Asst. Attys. Gen., S. Clark Moore and Norman H. Sokolow, Deputy Attys. Gen., for plaintiff and respondent.

McCOMB, Justice.

By an information, defendant and Curtis Vann were charged with sodomy (Pen.Code, § 286), and Carlos Rodriguez was charged with attempted sodomy and assault with intent to commit that offense. At defendant's request, his case was severed. After a court trial, he was found guilty of sodomy, and a jury subsequently found that he was sane at the time of the commission of the offense. He appeals from the judgment of conviction thereafter entered.

Facts: Viewed in the light most favorable to the People (People v. Sweeney, 55 Cal.2d 27, 33(1), 9 Cal.Rptr. 793, 357 P.2d 1049), the record shows, as follows:

The alleged offense occurred in the early morning hours of September 19, 1970, in a locked cell of the Ventura County Jail occupied by six persons: defendant, Charles K. (pathic participant in the offense), Vann, Rodriguez, and two other men. Of the inmates of the cell, only Charles K. and Vann testified regarding the alleged offense.

Testimony of Charles K.

Charles testified that at the time of the offense he was 18 years old, was not a homosexual, and had never previously engaged in a homosexual act. During the summer of 1970 following his high school graduation, he hitchhiked around the country, 'seeing what the rest of the world looked like.' On September 5 in Oxnard, he was arrested for the first time in his life and was held at the city jail on a charge of being under the influence of marijuana. He was unable to furnish bail. On September 8, he was transferred to a four-cell tank in the county jail. Each cell was locked at night and open to a common room during the daytime. The inmates selected their own cells. From the time Charles entered the tank, other inmates whistled and jeered in a homosexually suggestive manner and made comments about his long hair and remarks such as, 'Gee, you're pretty.' Charles was then 5 feet, 11 inches tall and weighed about 120 pounds.

Charles originally moved into Cell 4, but after an inmate of that cell kept saying, 'There's an old man here with a long pole,' and similar remarks, he moved to Cell 3. He described the inmates of that cell as 'bullies,' who subjected him to unspecified 'personal persecution.' He indicated, however, that sexual advances had been coming toward him from some of the occupants of the cell. ¹

While Charles was playing chess with defendant, who was an occupant of Cell 2, defendant kissed him on the mouth. Charles ran away from defendant, who told him a few minutes later that he was just trying to find out if Charles was homosexual. Thereafter, defendant told Charles that unless he moved into Cell 2 under the protection of defendant, Rodriguez, and Vann, he was going to be 'rat- packed,' and something would happen to him in Cell 3. Later Charles testified: 'Rat packed . . . is where maybe a whole cell or even the whole tank goes in after you . . . (for the purpose of) (s)exual violence.' About September 13, Charles moved into Cell 2.

Some time after midnight on September 18 (that is, during the early morning hours of September 19), Charles and Rodriguez were playing cards while the other inmates of the cell were in their own bunks. Charles estimated Rodriguez to be 5 feet, 7 or 8 inches tall, to weigh between 160 and 170 pounds, and to be between 35 and 40 years of age. Rodriguez 'propositioned' Charles to have sexual intercourse, but Charles refused. Rodriguez then said that defendant and Vann had conspired to rape Charles forcibly, but that if Charles would submit to a simulated act of sodomy, they would think Charles was Rodriguez's 'kid' and leave him alone. Charles assented to this. Rodriguez lowered Charles' trousers, took some Groom & Clean hair dressing from under Rodriguez's bunk, applied it to Charles' anal area, and simulated an act of sodomy. Rodriguez stopped abruptly when a man in one of the upper bunks sat up and looked at them.

Rodriguez then went to defendant's bunk, and they conversed in Spanish. Afterwards, defendant, dressed in a T-shirt and underwear-type shorts, came to the bunk where Charles was. He started dealing cards, as though he had come over to have a card game with Charles; but he then told Charles they should 'get down to business' and that Charles should lie down on the bunk. At first, Charles refused, but he then submitted unwillingly and in fear after defendant told him that if he did not, he would be 'on his own,' without protection, and that he knew the circumstances involved with Cell 3 especially and with the rest of the jail. Defendant applied Groom & Clean to Charles' anal area and committed sodomy. Charles groaned in pain and told defendant to stop it, because it hurt and also because he did not believe in it. Defendant, however, continued, telling Charles to be quiet. ²

After defendant went away, Vann came over to the bunk. Charles grabbed his trousers and started to pull them up, but Vann kept pulling them down, resulting in almost a tug of war between them. Vann told Charles to lie down or he would hit him. Charles refused, and Vann hit him, knocking him unconscious for a moment. When Charles regained consciousness, Vann was committing sodomy on him.

With further reference to the act between himself and defendant, Charles testified that he was afraid, saying he 'was afraid of everybody and everything at the time.' He said he was afraid they would beat him up and possibly kill him if he told anyone.

The next morning, Charles did not take the initiative in reporting the criminal incidents to jail officers because he was still in fear, since after committing sodomy defendant had said that if Charles told anyone of the offense, defendant would beat him up and remove his protection and he might be 'rat-packed.' Later in the day, an officer took Charles from the tank and informed him that he was investigating a reported incident which had occurred in Cell 2. The officer did not 'pressure' him; but Charles, although still afraid, decided to, and did, make a statement as to the alleged offenses.

Testimony of Vann ³

Vann testified that he was 5 feet, 9 1/2 inches tall and weighed 185 pounds. On the night of September 18, 1970, past midnight, he saw Rodriguez and then defendant commit sodomy on Charles. While defendant was engaged in the crime, Vann lay in his bunk and watched so that he could warn defendant and Charles to stop what they were doing if officers came into the tank. Vann then approached Charles, but Charles, according to Vann's testimony, refused him because he was black. Vann admitted that he knocked Charles out and started to commit sodomy on him, but said that he could not go through with it.

Arguments in trial court

Defense counsel commenced his argument on the merits of the case with the statement, 'It appears to me, your Honor, that the first question that should be resolved in the Court's mind is whether or not (Charles) is an accomplice as a matter of law in the alleged act about which he testified.' He, of course, argued in the affirmative and then urged that Vann was also an accomplice as a matter of law, as a result of which his testimony could not constitute corroboration of Charles' testimony, and that there was virtually no other evidence which could constitute corroboration. ⁴ In conclusion, he stated 'On that basis I would ask for an acquittal.'

The prosecuting attorney argued, among other things, that Charles, a young, inexperienced 18-year old boy, who had just finished high school, engaged in his first taste of real life experience hitchhiking around the country, been arrested and put in jail for the first time in his life, and, with his long hair, had a somewhat effeminate appearance, had submitted under duress and out of fear and was not an accomplice. The prosecuting attorney argued that when Charles found himself locked in the cell with five other people, 'he was, in effect, like the proverbial lamb in the den of wolves.'

By finding defendant guilty, the trial court found by implication that Charles was not an accomplice or, in the alternative, that Charles was an accomplice but that Vann was not an accomplice and hence his testimony corroborated Charles' testimony.

Questions: First. Is there sufficient evidence to support the trial court's findings?

Yes. By the terms of section 1111 of the Penal Code, the testimony of an accomplice must be corroborated. ⁵ Under the circumstances here present, however, the trier of fact could reasonably have inferred that Charles was not an accomplice and that his testimony therefore constituted a sufficient basis for finding defendant guilty.

Under section 26, subdivision 8, of the Penal Code, the defense of duress is available only to those 'who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' (Italics added.) Although a number of cases in this state have held that the fear must literally be of Death, People v. Otis, 174 Cal.App.2d 119, 124, 344 P.2d 342, suggests that the fine distinction between fear of danger to life and fear of great bodily harm is unrealistic. According to Otis (quoted approvingly in People v. Lo Cicero, 71 Cal.2d 1186, 1191, 80 Cal.Rptr. 913, 459 P.2d 241), however, the threat must be of present, immediate harm, not future violence. Here, by Charles' own testimony, when he submitted to defendant there had been no threats of immediate...