People v. Ramirez
| Decision Date | 04 December 1969 |
| Docket Number | Cr. 3551 |
| Citation | 2 Cal.App.3d 345,82 Cal.Rptr. 665 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Jesus RAMIREZ, Defendant and Appellant. |
Defendant appeals from a judgment imposing sentence following verdicts finding him guilty of kidnaping, assault with intent to commit rape and attempted rape.
Defendant's contentions may be summarized as follows:
The evidence is insufficient to support any of the verdicts.
Assault with intent to commit rape includes the offense of attempted rape, so that the conviction of the latter may not stand.
In a supplemental brief filed in propria persona, defendant inferentially argues the inadequacy of trial counsel.
In that brief he urges that the sentences imposed on counts three and four may not stand, even though execution of the sentences has been stayed. We give hereafter our reasons for holding the sentence on count four may not stand. However, the objection made by defendant has been considered in People v. Johnson, 242 Cal.App.2d 870, 876--877, 52 Cal.Rptr. 38 and People v. Niles, 227 Cal.App.2d 749, 755, 39 Cal.Rptr. 11, and in those cases the method used by the trial court was held to be permissible.
The evidence in support of the verdicts is sufficient.
At about 2:30 a.m., Thelma D., the victim, drove her car from her home in Midway City, to the adjacent community of Garden Grove to the grounds of a plant known as Air Industries to bring home her brother, an employee of Air Industries, who was to finish his shift at 3:00 a.m.
As she traveled toward Air Industries, she noticed a brown Rambler two-door automobile seemed to be following her car. Having passed through the gate at Air Industries, she parked her car with its rear to the wall after she noticed that the brown Rambler also entered the gate and stopped with its front toward the wall, with its driver's side nearer her car. A man later identified as Laurent alighted from the driver's side of the Rambler and came alongside her car and inquired the time; she told him '25 minutes till 3:00.' He then opened the door and started to pull her out; when she started to scream he said to shut up or he would kill her with a knife he had in his pocket.
Laurent succeeded in pulling her out, but while he was doing so she bit his finger, managed to break away, ran a short distance toward a guard house and yelled, 'Please help me.' Laurent overtook her and brought her to the side of the Rambler.
Defendant had been in the front seat of the Rambler on the passenger side, and had been shouting directions to Laurent, including one to 'choke her.' Between the two of them they pushed and pulled Thelma into the Rambler and threw her over the front seat onto the floor in back.
While Laurent got in and drove the car away, defendant crawled over the back of the front seat onto Thelma. Laurent told defendant that he wanted to be first, but defendant said, 'Wait, wait' and proceeded in no uncertain manner to demonstrate his intention to effectuate an act of sexual intercourse.
Meanwhile, a guard at Air Industries had noticed the scuffling and had heard a scream from one of the struggling figures but did nothing about it. However, Adair, a Garden Grove policeman, passing the open gate at 2:47 a.m., noticed the lights shining from Thelma's parked car and entered to investigate. He saw a shoe on the ground that Thelma had lost in the attempt to free herself, found that all doors of the four-door car were locked except that next to the steering wheel and that there was a woman's open purse on the seat. There were also some white pills scattered on the ground that had been lost by Laurent and which proved to be amphetamine tablets.
Adair obtained from the guard an account of what the latter had seen and heard, including a description of the Rambler and the direction in which it had gone. He had that information put out on the police radio at 2:50 a.m. Officer Davis was one of those who received the message. He sighted and pursued the Rambler which took an erratic course as soon as Laurent and defendant became aware of the nearness of the police; and defendant then desisted from his apparent intention to effectuate an act of sexual intercourse.
After the police car had sounded its siren, defendant tried to help Thelma put on her pants and brassiere, but held her head. She asked that he please stop the car, saying there was going to be an accident and she would be killed. Laurent started going slower as if to stop and was told by defendant to keep going, upon which Laurent started going rapidly.
Officer Davis, when another police car was near him, brought his car in front of the Rambler, forcing it to stop. After stopping, Laurent swung suddenly around in a U-turn and sped off, but followed by the police. Finally the Rambler overturned and Laurent received fatal injuries.
In oral argument, defense counsel asserted it would have been physically impossible for defendant to have effectuated an act of sexual intercourse under the circumstances. That is a gratuitous assertion.
Defendant as a witness admitted he intended to have sexual intercourse with Thelma but that as she lay on the car floor she had said she knew what he wanted and that it was 'okay.' He said also that he had been drinking and had had a large number of benzedrine pills earlier.
Thelma had been asked about the pills in her purse which she said were vitamin pills for her children. Defendant, in the Pro se brief, suggests that cross-examination of Thelma might have shown that the amphetamine pills also were hers and that she was addicted to the use of amphetamine. That argument may have postulated that Thelma's account of her experience was, in effect, the result of a pipe dream. Such testimony would have been immaterial. (People v. Pargo, 241 Cal.App.2d 594, 600, 50 Cal.Rptr. 719.) Nothing in the evidence suggests that such a line of inquiry could have been profitably pursued. Trial counsel was not at fault in not dreaming up the desirability of such an exploration.
Defendant attacks the sufficiency of the evidence to support the conviction of kidnapping because of claimed inconsistencies in the testimony of Thelma and because of the conflicts between her testimony and his own. All those matters were resolved by the triers of fact. People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, cited by defendant, has no application to the present situation. Thelma did not at any time deny the essence of her claim that she was seized and abducted by force and subjected to a forcible preliminary to an act of sexual intercourse, thwarted only by the intervention of the police.
The alleged inconsistencies in the testimony of Thelma must be considered trivial in view of the corroborative evidence as to the use of force and her lack of consent. (Cf. People v. Kimball, 122 Cal.App.2d 211, 264 P.2d 582.)
Having been convicted of assault with intent to commit rape, defendant could not legally be punished for that crime and for attempted rape based upon the same facts.
In the case at bench, defendant was sentenced to prison for the term provided by law; the judgment then provided:
'It is ordered that sentences shall be served in respect to one another as follows, the execution of sentence is suspended on counts three (3) and four (4) pending any appeal or any sentence imposed by the Adult Authority and then to become permanent.'
Count three charged assault with intent to commit rape; count four, attempted rape by force and violence.
The Attorney General does not concede that an attempt to rape by force and violence is a necessarily included offense in assault with intent to commit rape, but does concede that defendant here might not be punished for both convictions.
An attempt to determine whether one of the offenses is a necessarily included offense in the other might seem to be an exercise in logomachy. However, there is a distinction in the relationship between two different statutory definitions of crimes which may be applicable to the same act, and which provide for different punishments, and that between a necessarily included crime and the crime within which it is included.
If a single accusatory pleading were to charge both the greater crime and, in a separate count, the necessarily included offense, the latter would be a superfluity. A conviction of both would not stand.
'' (People v. Craig, 17 Cal.2d 453, 457, 110 P.2d 403, 404.)
However, when a person is charged and convicted of two separately defined crimes based upon the same act but neither of which crime is necessarily included in the other, the convictions may stand, although there may be only one punishment.
Defendant cites People v. Rupp, 41 Cal.2d 371, 260 P.2d 1, as authority for the proposition that an assault with intent to commit rape necessarily includes an attempt to commit rape.
People v. Rupp, Supra, does, indeed, contain this...
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