People v. Rincon-Pineda

• Decision Date: 31 July 1975
• Docket Number: D,RINCON-PINED,Cr. 18510
• Citation: 538 P.2d 247,14 Cal.3d 864,123 Cal.Rptr. 119
• Court: California Supreme Court
• Parties: , 538 P.2d 247, 92 A.L.R.3d 845 The PEOPLE, Plaintiff and Respondent, v. Leonardoefendant and Appellant.

Page 119

123 Cal.Rptr. 119

14 Cal.3d 864, 538 P.2d 247, 92 A.L.R.3d 845

The PEOPLE, Plaintiff and Respondent, v. Leonardo RINCON-PINEDA, Defendant and Appellant.

Cr. 18510.

Supreme Court of California,

In Bank.

July 31, 1975.

Richard S. Buckley, Public Defender, Harold E. Shabo, Sam Gordon and Martin Stein, Deputy Public Defenders, for defendant and appellant.

Marvin W. Friedman, San Francisco, as amicus curiae for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

Mildred W. Levin, Jettie Pierce Selvig, Camille E. LeGrand, San Francisco, Jill Jakes, Fred Okrand, Mark D. Rosenbaum and Daniel C. Lavery, Los Angeles, as amici curiae for plaintiff and respondent.

WRIGHT, Chief Justice.

The judgment here under review arose from the wanton and brutal rape of a young woman who lived alone near defendant's temporary residence. As is often typical of such a crime, it was witnessed by no one other than the victim and the rapist. Owing to this circumstance, to the trauma inflicted on the victim and to legal principles of long standing legitimacy, the treatment of the victim during the prosecution of the defendant was also quite typical of that heretofore accorded those unfortunate enough to fall victim to this sorry genre of crimes.

The trial judge was of the opinion that a once unimpeachable rule of law could not appropriately be applied to circumstances such as those present herein. Because he considered it to be demeaning of the victim in the instant case, the judge refused to deliver to the jury a cautionary instruction which originated in the 17th century and which reflects adversely on the credibility of the complaining witness in a prosecution for sexual assault. The judge's failure to so instruct the jury is the sole objection before us on this appeal. We have previously held the instruction in issue to be mandatory, and the omission of the instruction was accordingly erroneous. However, upon reviewing the evidence before the jury we conclude that the error was not prejudicial. Moreover, we are of the opinion that as presently worded the instruction is inappropriate regardless or the particular evidence which might be adduced at trial. Since defendant herein was accorded plenary due process and nevertheless was found by a jury on the basis of substantial evidence to have committed the rape and related sexual assaults testified to by the victim, we affirm the judgment below.

I

The victim testified that on the night of July 9, 197o, she retired at her customary hour of 11 p.m. At approximately 3 a.m. the following morning she awakened to find a person lying beside her in her bed. As she screamed 'Who is it?' she turned on a 100 watt bedside lamp and recognized defendant as the intruder.

The victim lived in the middle building of three contiguous dwellings. At the front, on the street, lived the owner of all three buildings. Behind his house was the victim's one-bedroom cottage, and behind her cottage was a bungalow rented to several individuals of Mexican descent. Although she had never spoken to him previously, the victim recognized defendant as one who had been living behind her cottage for the past few weeks.

Defendant had apparently gained ingress through the window the victim always left open for the use of her pet cats. Drawing a robe around her partially nude body, the victim, in broken Spanish, ordered defendant to leave. When he did not respond, she began to scream. Defendant grabbed her, tried to cover her mouth, and indicated his intention to have intercourse with her. The victim ran screaming from the bedroom into the kitchen, where the open window was located. Defendant, however, caught the victim, jammed a hand in her mouth, beat her about the face until she stopped screaming, and then began to choke her. Having hitherto scratched and clawed at defendant's face, the victim realized her life was in great danger, and ceased resisting. Lest defendant discovered the knives hanging directly above her head, which was then pressed against the kitchen floor, the victim inveigled defendant into going into the living room by muttering that it was 'mas suave,' or softer, since it was carpeted. The victim, whose principal concern was now to survive, then submitted to approximately a dozen acts of sexual assault over the ensuing two or three hours, including intercourse, oral copulation, and attempted sodomy.

In the course of these acts the victim sought to avoid further bodily harm by befriending her assailant. Telling him of a Spanish girl she tutored, she sought to get him to agree to help her in the girl's tutoring. Although the defendant had difficulty throughout this period in maintaining an erection, he did not appear to be intoxicated. Once she had succeeded in convincing defendant that his return would be welcomed, the victim persuaded him to leave on the pretext that she had to go to work. Defendant thereupon moved the victim back into the bedroom. After cautioning the victim against reporting her rape, defendant left.

Following her initial bedside identification of defendant, the victim and defendant had moved into unlit portions of her home. When defendant moved back into the bedroom during the final stages of the assault, however, he moved back into the strong illumination of the bedside lamp. Moreover, the victim had an additional opportunity for identification of defendant when she let him out her front door into the early light of dawn. The victim was absolutely positive in her identification of defendant at trial as the perpetrator of the crimes against her.

To be consistent with her tale to the defendant that she had to go to work, and to avoid being overheard should defendant have remained lurking outside, the victim left her home and drove to a telephone booth where she called an attorney friend for comfort and advice. Meeting him at his office, a converted dwelling, she showered there and then sought solace in conversation for about two hours. After calling her doctor and her employer, she and her friend prepared to return to her residence. They telephoned ahead to advise the landlord, Mr. Wek, of what had happened. When they arrived at her residence they went to Wek's house and again discussed the matter with him. After Wek had determined that defendant was still at the rear house, the victim called the police.

The arresting officer testified that after having spoken with the victim he approached defendant's bungalow and apprehended defendant in the act of leaving it. Defendant was wearing two pairs of trousers and had two sets of underwear rolled up in his jacket. The victim identified defendant as her assailant and he was formally arrested. At this time, defendant appeared to the arresting officer to be sober.

Shortly before noon on the day of the rape, the victim was examined by a doctor who testified at trial that 'she had multiple bruises all over her body, especially over the face, nose, lips, the front side of her neck, over the left pelvic region, over the right frontal scalp region, and one tooth in the left upper front side of the jaw was loosened.' Pictures of these injuries were in evidence at trial. Because no internal ejaculation had taken place and because the victim had taken a shower since the assault, no attempt was made to gain medical evidence of her having been sexually assaulted.

At the time of his arrest defendant had a prominent scratch or abrasion on his forehead of clearly recent origin. A photograph of this scratch was placed in evidence at trial. There was also evidence of a possible admission by defendant. While in custody at the police station on the day after his arrest, defendant was notified through an interpreter of his rights, and after waiver thereof was asked some questions concerning his conduct on the previous night. The interpreter testified that defendant could not explain how he had gotten the bump or scratch on his head. Defendant kep saying that he had been drunk. The interpreter testified: 'I asked the defendant if he had done this thing that he was being charged with, he said if he did, he was very drunk when he did it. . . . (H)e said he was very drunk, if he did do this, he was really embarrassed, his family back in Mexico, something to that effect.' ¹

There was no apparent official effort to obtain other evidence corroborating the victim's accusation of defendant, however. No evidence was presented by the prosecution or defense as to there having been any attempt to gather scientific evidence from either the scene of the crime, such as fingerprints, or from defendant's person and clothing, such as tissue or fiber traces.

Defendant testified in his own defense that he was twenty-four years of age and had entered the United States illegally six weeks before his arrest, leaving his wife and three children in Mexico while he sought employment in Los Angeles. He had joined his brother and several other illegal aliens at the bungalow behind the victim's cottage. He had seen her but had never spoken to her. He had spent the day before his arrest drinking with his companions in a neighborhood bar. He had no personal recollection of making his way back from the bar, but had been told by his friends the following morning that he had been helped home between 1 a.m. and 2 a.m. and had hit his head on a door or gate to the bungalow. After all but one of his companions had left for work at 6 a.m. defendant had returned to sleep until he had been awakened by Mr. Wek, the landlord. Wek was inquiring who had molested the victim, and seeking the scratch on defendant's forehead, had accused defendant. Defendant had denied the accusation. When he heard the police arriving, however, he knew he would surely be arrested as an illegal alien, so he grabbed his...