People v. Robles

• Decision Date: 27 September 1962
• Docket Number: Cr. 24
• Citation: 24 Cal.Rptr. 708,207 Cal.App.2d 891
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph Leon ROBLES, Defendant and Appellant.

Page 708

24 Cal.Rptr. 708

207 Cal.App.2d 891

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph Leon ROBLES, Defendant and Appellant.

Cr. 24.

District Court of Appeal, Fifth District, California.

Sept. 27, 1962.

Ralph Leon Robles, appellant, in pro. per.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Sacramento, Raymond M. Momboisse and Barry L. Bunshoft, Deputy Attys. Gen., for respondent.

STONE, Justice.

Appellant and his co-defendant, Rocha, were charged in a three-count indictment with: Count I, violation of section 261, subd. 4 of the Penal Code, rape by means of force and fear; Count II, violation of section 459 of the Penal Code, burglary by entering a dwelling house with intent to commit rape; Count III, violation of section 207 of the Penal Code, kidnaping. A jury found defendant guilty of the burglary, Count II, but failed to reach a verdict as to Count I, rape by force and violence. They acquitted defendant of Count III, kidnaping. Subsequently the court, upon motion of the District Attorney, dismissed Count I 'in the interests of justice,' and appellant was sentenced to the state prison pursuant to the judgment of conviction of burglary, first degree. Appellant has appealed from the judgment of conviction.

Appellant and his co-defendant, Rocha, drove from Kettleman City to Fresno, Sunday afternoon, January 15, 1961. They spent most of their time drinking mixed drinks, whiskey and beer, in various taverns, until closing time at 2:00 o'clock the following morning. They started back to Kettleman City and on the way appellant told Rocha that he knew of a woman with whom they could have intercourse, and that she lived in the Town of Burrel, a small community in Fresno County. Rocha was driving appellant's pickup truck and in accordance with directions from appellant, drove to the woman's home. The two men walked up the steps to the front porch; it then being approximately 4:30 a. m. January 16, 1961.

Before walking up the steps, Rocha tied a white handkerchief over his face and armed himself with a tire iron. Appellant knocked on the front door of the house and Mrs. Moreno, the woman for whom appellant was looking, was awakened. She turned on the porch light and looked out the window to see who was there. Appellant directed Rocha to unscrew the porch light so no one could recognize them. Rocha was unable to reach the light, and appellant directed him to knock it out with the tire iron, which Rocha proceeded to do. Mrs. Moreno did not recognize the men so she moved her daughter from the living room where she was sleeping, to a rear bedroom with her sister. Mrs. Moreno then went to the back door to lock it, and while she was so occupied, appellant opened the screen door by ripping the screen, and then kicked open the front door. A window pane in the top half of the door was broken, and the door lock or latch was sprung.

When Mrs. Moreno returned to the living room, appellant and Rocha were there; Rocha was still armed with the tire iron which he had used to break the front porch light. Mrs. Moreno said, 'What do you want? If you want money, I don't have money.'; to which appellant replied, 'No, we don't want money, what we want is this' and reached over and touched Mrs. Moreno in the pelvic region. Co-defendant Rocha asked appellant if he should hit Mrs. Moreno with the tire iron, and appellant replied that it would not be necessary as he thought she would go.

Mrs. Moreno testified that she feared for her own safety and that of her children and her sister, so she agreed to leave the house with the men. She asked to get her shoes, but appellant refused the request and she was forced to leave the house wearing only a bathrobe and panties. The three got into appellant's pickup truck, Rocha driving, Mrs. Moreno sitting between the two men. Rocha drove without headlights some two or three miles to a vacant field, and stopped. After Rocha got out of the truck, appellant removed Mrs. Moreno's panties and had sexual intercourse with her. When he finished, he got out a bottle of whiskey, took a drink and apologized to Mrs. Moreno. Then Rocha, still wearing the handkerchief over his face, entered the pickup and had sexual intercourse with Mrs. Moreno. When he finished he too apologized to her.

The two men then drove Mrs. Moreno to within a block of her home and let her out of the truck, barefooted and clad only in panties and a robe. Mrs. Moreno walked the block to her home, where she found an officer from the Fresno Sheriff's Office who had been called by Mrs. Moreno's next door neighbor. Appellant and Rocha were arrested a short time thereafter.

The greater part of appellant's brief is predicated upon a misconception of the law. Appellant asserts that he could not be convicted of burglary charging him with wilfully and unlawfully entering a dwelling house with intent to commit rape, because the jury was unable to agree as to Count I, charging him with rape. He emphasizes that Count I, the charge of rape, was dismissed by the court. Appellant states in his brief, 'To constitute burglary, the charge of rape (count I) had to be proven first.' Thus appellant argues that the intent to commit rape was not proved because the rape itself was not proved. However, the gist of the offense of burglary is defendant's intent to commit a felony at the time he enters the building. Section 459 of the Penal Code, in pertinent part, provides:

'Every person who enters any house * * * with intent to commit grand or petit larceny or any felony is guilty of burglary.'

Proof of intent at the time of entry does not depend upon the subsequent commission of the felony or even an attempt to commit it. This is borne out by People v. Guarino, 132 Cal.App.2d 554, at page 559, 282 P.2d 538, at page 541, where it is said:

'The crime of burglary is complete on the entering of the building with intent to commit a felony, though the intended felony be not committed.'

In the case of People v. Murphy, 173 Cal.App.2d 367, 373, 343 P.2d 273, 277, the court, in affirming a conviction of burglary predicated upon an entry with intent to commit theft, used the following language:

'* * * it is unnecessary to prove a theft under an accusation of burglary. The statute requires evidence only that the entry be effected with the intent to steal or to commit any felony.'

Thus appellant's contention that the failure of the jury to find him guilty of Count I, the charge of rape, negatives his conviction of burglary, that is, entering the dwelling of Mrs. Moreno with intent to commit rape, is based upon an erroneous concept of the law of burglary.

Looking now to appellant's attack upon the sufficiency of the evidence to support the verdict of the jury, we first note that the evidence must be reviewed in accordance with the rule laid down in People v. Newland, 15 Cal.2d 678, 104 P.2d 778. The Supreme Court said at page 681, 104 P.2d at page 780:

"* * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. (Citations.)'

Secondly it should be noted that burglary may be proved by circumstantial evidence. In People v. Stewart, 113 Cal.App.2d 687, at page 691, 248 P.2d 768, at page 770, it was held that:

'The burglarious intent could be reasonably and justifiably inferred from the unlawful and forcible entry alone.'

In People v. Murphy, supra, 173 Cal.App.2d page 373, 343 P.2d page 277, it was said that:

"In a prosecution for burglary the...