People v. Poon

• Decision Date: 30 October 1981
• Docket Number: Cr. 18505
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Peter POON, Defendant and Appellant.

Page 375

178 Cal.Rptr. 375

125 Cal.App.3d 55

PEOPLE of the State of California, Plaintiff and Respondent, v. Peter POON, Defendant and Appellant.

Cr. 18505.

Court of Appeal, First District, Division 1, California.

Oct. 30, 1981.

As Modified Nov. 17, 1981.

Rehearing Denied Nov. 25, 1981.

Hearing Denied Jan. 20, 1982.

Quin Denvir, State Public Defender, Eric S. Multhaup, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

This is an appeal from judgments of conviction following jury verdicts finding appellant guilty of two counts of burglary (Pen.Code, § 459), two counts of lewd and lascivious acts upon the body of a child (Pen.Code, § 288), assault with intent to commit rape (Pen.Code, § 220), false imprisonment (Pen.Code, § 236) and rape (Pen.Code, § 261, subd. 2). The convictions were based upon two separate incidents, involving different victims. The evidence offered at the consolidated trial of the offenses may be summarized as follows.

The Florence C. Incident

Thirteen-year-old Florence C. (hereinafter Florence) testified that on December 16, 1977, at approximately 5:30 p. m., upon completion of her newspaper delivery route, she entered a garage at 1845 Franklin (between Washington and Clay) in San Francisco, where she intended to meet her brother, Patrick. Florence customarily met her brother in the garage after completion of their respective newspaper routes.

While she waited there, a man, stipulated to be appellant, entered the garage and asked her "Where Powell Street was." Florence gave appellant bus directions. Appellant then left the garage, but immediately returned. He subsquently turned off some lights in the garage, then turned them back on, and closed the garage door from the inside.

Appellant approached Florence and told her to "shut up." Florence screamed, then was told she would be killed if she screamed again. Appellant informed Florence that he had a knife, though she did not see one. Florence screamed again and attempted to leave, but appellant blocked her path and put his arm around her neck. When she struggled, appellant pushed her to the floor. According to Florence, while she was lying on her stomach, with appellant sitting on top of her facing the same direction, appellant put his hand under her panties and onto her buttocks. As this occurred, the garage door was opened; appellant quickly jumped to his feet and started to leave the garage. As she heard the door opening, Florence yelled "rape," then followed after appellant, hitting him with her shoe and swearing at him.

According to Patrick, he approached the garage at about 5:30 p.m., and heard someone scream "rape." He then entered the garage and saw appellant walking out with Florence behind him.

Upon seeing her brother, Florence told him that appellant had threatened her with a knife and tried to rape her. Appellant replied that "He didn't do it"; he complained that Florence had run into him with a newspaper cart, which Florence denied.

Appellant permitted Patrick to search his pockets for a knife; none was found. Meanwhile, Florence left the garage to locate a nearby security guard. Appellant informed Florence and Patrick that his name was "Peter Wong," offered Patrick a photograph of himself, and asked to leave. Patrick told appellant to wait until the police arrived, and returned the photograph.

Appellant and Patrick then walked to the garage in which appellant's car was parked, at 1890 Clay (between Franklin and Van Ness). They entered appellant's vehicle, and drove around the block to where Florence was waiting with Lee Vernon Cox, a Pinkerton security guard. Cox testified that Florence approached him in an upset state; she requested that he call the police because someone had attempted to rape her.

San Francisco Police Officer Edwin McDonough testified that he and his patrol partner responded to the call placed by Cox, and found Florence upset and crying. McDonough spoke with appellant while his partner interviewed Florence. Appellant recounted to McDonough that Florence had run into him with a newspaper cart, leading to an altercation. Appellant then followed the police to a nearby station, were he was arrested and booked.

On two subsequent occasions, appellant approached Florence and attempted to speak with her. The first time Florence refused, so appellant later asked Patrick if a meeting with Florence could be arranged. At Patrick's suggestion, Florence spoke with appellant. Appellant apologized for the incident and offered Florence a "few hundred dollars" to "forget the whole thing." The offer was refused.

Appellant testified on his own behalf at trial. According to appellant, on the afternoon of December 16, 1977, he completed some errands for his uncle around 4:45-4:50 p. m., whereupon he drove his uncle's car to a Porsche-Audi dealer on Sacramento (between Franklin and Van Ness) to pick up a previously ordered spare part for his own vehicle. He had difficulty finding a parking spot, and ultimately parked in a garage on Clay (midway between Franklin and Van Ness). It was raining, so he ran from his parking space to the parts dealer, which was closed. ¹ He ran back to his car, taking a circuitous route-the site where his car was parked being closer to the dealership than the garage where he encountered Florence. He explained that he did not directly return to his car because he could not remember where it was parked. ²

As appellant was running down the sidewalk on Clay, he almost bumped into Florence and her newspaper cart. He told Florence to "watch where you are going," whereupon heated words between the two were exchanged, culminating with appellant shoving Florence. Florence pushed her cart through the open garage door, swearing at appellant, and appellant followed her inside the garage. Appellant, tired and angry, wanted Florence to apologize for the incident, so he pushed her toward the back of the garage. However, the heated exchange continued; then appellant lost his temper, "stepped forward and gave her a headlock." Florence struggled, and the two fell to the ground, with Florence landing on her back.

According to appellant's version of the incident, he realized that the altercation was a mistake and was attempting to leave when Patrick arrived.

Appellant denied threatening Florence or stating that he had a knife. He testified that he did not intend to rape her, did not touch her buttocks, did not ask her where Powell Street was, and did not close the garage door or turn the lights on and off.

The Betty N. Incident

On the morning of March 10, 1978, nine-year-old Betty N. (hereinafter Betty) left home with her mother at around 6:30-6:40 a. m. to walk to her school bus stop on Washington Street (near Stockton). However, Betty's mother lost sight of her along the route to the bus stop.

As Betty walked past the Cumberland Church on Stone Street, a man-identified by Betty in court as appellant-approached her and asked where Jones Street was located. Because the man was a stranger, Betty responded "No." Appellant then dragged her through the church door on Stone Street, into a room, and raped her. Appellant then released Betty and left the building.

After her release, Betty went to the school bus stop and there located her mother. By the time Betty returned, she had been away from her mother less than one-half hour.

After the incident, Betty and her mother went to the home of Betty's cousin, Doris Lee, and the police were called. Betty described her assailant to the investigating officer, Joseph Arone, and explained that she had seen the man on a previous occasion. ³ Officer Arone then took Betty to the Cumberland Church, where she identified the room in which the rape occurred.

Betty was subsequently taken by Inspector Margaret Hartmann to the Hall of Justice, where she was asked to look through a mug book. She immediately identified appellant, whose photograph was in the book as a result of the earlier Florence C. incident.

Around 3 p.m. on the afternoon of the rape, appellant was arrested by Inspectors Hartmann and Kevin O'Connor as he walked down Powell Street toward his residence. He was wearing the blue jacket identified by Betty. Semen was found on the underpants, pants and shirt worn by appellant at the time of his arrest. It was of a type consistent with the semen found on Betty's panties; thus, according to the testimony of police criminalists, appellant could not be excluded as the perpetrator, although such consistency of type did not, of course, conclusively prove appellant's guilt.

Appellant offered evidence in an effort to negate his identification as Betty's rapist. According to his testimony, on March 10, 1978, he was scheduled to work the 7 a. m.-3 p. m. shift at Davre's restaurant, located in the Bank of America Building on Kearny. The previous night, he had worked the 10 p. m. to 6 a. m. shift at the Sugar Plum restaurant in San Francisco with his wife, Anna.

Appellant testified that he and his wife punched out at the Sugar Plum at 6:08 a. m. on March 10. After dropping fellow employees off at two locations in San Francisco, ⁴ appellant and his wife drove to their residence. On the way home, appellant realized that he did not have his wallet, so he double parked, went inside his apartment, called the manager of the Sugar Plum, and was told that his wallet had been found in the employee's dressing room. Appellant then had a cup of tea, and left to park the car and walk to work at Darve's at approximately 6:50 a. m.

Appellant further testified that he had some difficulty finding a parking space, finally parking on Pacific (between Mason and Taylor). From there, he walked to work, taking a route...