People v. Ross

• Decision Date: 03 June 1965
• Docket Number: Cr. 142
• Citation: 234 Cal.App.2d 758,44 Cal.Rptr. 722
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond ROSS, Defendant and Appellant.

Page 722

44 Cal.Rptr. 722

234 Cal.App.2d 758

The PEOPLE, Plaintiff and Respondent, v. Raymond ROSS, Defendant and Appellant.

Cr. 142.

District Court of Appeal, Fifth District, California.

June 3, 1965.

Hearing Denied July 28, 1965.

James F. Thaxter appointed by the District Court of Appeal, Fresno, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and Ronald W. Tochterman, Deputy Attys. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

Raymond Ross appeals from judgment of conviction on two counts of an information charging forceable rape and violation of section 288 of the Penal Code. He was accused by a 13-year-old girl of the commission of these offenses near the City of Modesto. The defendant was sentenced on each count to imprisoment for the term provided by law, the sentences to run concurrently.

Loretta Pearson testified that shortly before 6:00 p. m. on August 3, 1964, with the permission of her mother, she went with Ray (as she called him) Ross in her mother's automobile, ostensibly to the Modesto bus station to permit him to buy a ticket to Los Angeles. Instead, he drove down highway 99 toward Ceres, turned off toward Carpenter Road, passed the dog pound, and then drove onto a dirt road; there he stopped the car, moved over toward her, touched her on the breasts and in the vicinity of her private parts, saying, 'Your brothers did this and this to you before.' He then started unbuttoning her pedal pushers; she began screaming, and tried to open the door of the automobile. The defendant grabbed for her neck and said that if she didn't 'shut up' he was going to kill her. She did succeed in getting the door open, but it did not stay open. He ripped her pedal pushers, succeeded in removing a leg from her clothing, and her underclothes, and engaged in an act of intercourse with her. The struggle and the commission of the offense took some 20 or 30 minutes, according to her testimony; she said she tried to choke him and also to stab him with a pair of scissors, but without success. After the completion of the act, Loretta got out of the car, adjusted her clothing, and then re-entered the car; she did not try to run away, and passing automobiles on the highway were too far away to permit her to engage their attention. The complaining witness said that the defendant then drove to a store where he bought safety pins and two ice cream cones; she used the safety pins to pin up her clothing, but she stated that she did not eat the ice cream. The defendant drove the car to her mother's home where she got out and found that her mother had gone to a nearby park. She remained in the house until Mrs. Pearson arrived with her other children. In the presence of Raymond Ross, she began to tell what happened, and Ross said, 'Loretta, tell your mother the truth.' When she stated what had occurred, Mrs. Pearson slapped Ross and the defendant grabbed for the mother's neck. One of the boys in the family was told by his mother to call the police, which he did. After hearing this fact, defendant angrily threw his cap onto the floor and then picked it up and left in Mrs. Pearson's automobile.

On cross-examination, Loretta testified that the defendant has never bothered her sexually before, but she admitted that he had whipped her prior to this event as punishment for not bringing in the family clothes for her mother from the clothes line. She further testified that the defendant had spent the night before in the Pearson home where Loretta lived with her mother and brothers and sisters. She admitted that when he stopped at the store to buy the pins and ice cream there were other people around, but that she was not then crying or screaming, and that she did not get out of the car or mention the incident to anyone.

Dr. Robert W. Clark examined the girl at the emergency clinic at the Stanislaus County Hospital at about 7:30 p. m. on August 3, 1964; he testified that she had had sexual intercourse sometime within an eighthour period before the examination. There was no external evidence of assault on her body except for a small bruise on the right side of her neck.

Dorothy Pearson, her mother, testified that Loretta was 13 years of age on May 7, 1964; Mrs. Pearson admitted that the defendant had lived with her as man and wife for two months in Los Angeles in 1962, and a month in Montana in 1960, that Raymond Ross calls her his wife, that they have a child, and that defendant was very good to her and to her children.

Detective Sergeant Garvin testified, over the objection of the defense attorney, that he had talked with the defendant on August 6, 1964, at the sheriff's office when defendant was in custody after he had been booked for the alleged offense, that defendant was not advised of his right to remain silent nor of his right to have counsel present during the interview by the police; the defendant talked freely and voluntarily; he told the witness that he had not been in Modesto between July 29 and August 5, 1964, but was in Fairfield and Suisun on August 3, 1964, where he saw and talked with several named people. On the next day, Garvin went to the Fairfield area and made contact with all but one of the persons named by the defendant; several were called as witnesses at the trial; the attempt to establish an alibi evidently failed as shown by the verdict of the jury.

Appellant urges the following grounds for reversal:

1) Erroneous admission of defendant's alibi statement;

2) Errors in the instructions; and

3) Double punishment imposed for what was essentially one crime.

Appellant contends that it was not proper to use as evidence the statement made to Sergeant Garvin because of the principles enunciated in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and PEOPLE V. DORADO, 62 CAL.2D 338, 42 CAL.RPTR. 169, 398 P.2D 361.¹ The statement was not a confession or an admission of any factor which supplied a necessary element of the crime. It consisted of a flat denial that he was present at the locus of the crime. He said he was not in Stanislaus County at all, and, if this were true, the inference would follow that he could not possibly have been guilty of the charges. However, the appellant points out that if a claimed alibi is shown to be false, a jury is apt to consider that this fact indicates a guilty knowledge of the commission of the crime by the defendant. (People v. Cole, 141 Cal. 88, 90, 74 P. 547; People v. Miller, 185 Cal.App.2d 59, 70-71, 8 Cal.Rptr. 91; Witkin, California Evidence, § 240, pp. 273-274; People v. Underwood, 61 Cal.2d 113, 121, 37 Cal.Rptr. 313, 389 P.2d 937.)

From the practical standpoint, it is quite true that, if a jury rejects alibi evidence as false, their tendency is to take the uncontradicted testimony of a complaining witness as establishing the truth.

The defendant should have been advised preliminarily of his right to remain silent and that he could have an attorney of his choice present at his interview by the police. And as held in PEOPLE V. HILLERY, 62 CAL.2D ----, ----, 44 CAL.RPTR. 30, 401 P.2D 382,² it is error to produce evidence of a statement to the police if this preliminary precaution for the rights of a defendant has not been observed.

However, as stated in People v. Dorado, supra, ³ 62 Cal.2d 338, 356, 42 Cal.Rptr. 169, 180, 398 P.2d 361, 372:

'* * * under some circumstances the introduction into evidence of statements obtained from a defendant during police interrogation in violation of his right to counsel and his right to remain silent may constitute harmless error, * * *.'

And PEOPLE V. FINN, 232 CAL.APP.2D ----, ----, 42 CAL.RPTR. 704, 707,⁴ correctly points out:

'It seems to us that when a statement is something less than an admission of an essential element of the crime or a fact necessary to establish the defendant's guilt, it must be viewed in the light of all of the circumstances surrounding the trial to determine whether its use in evidence constituted reversible error.'

In this case, we conclude that the use of the claim of alibi made by the defendant did not constitute reversible error. The statement itself was freely and voluntarily given, the police official so testified, and the court correctly instructed the jury that they were to disregard it entirely if it were not free and voluntary; there is no intimation that pressure was exerted by the police officials, or that any threats or promises were made, or that physical harm was inflicted. The statement was purely exculpatory. It should be noted, also, that the existence of the alibi was the principal defense in the case itself, and that the defendant's own testimony and that of two other witnesses called by him tended to prove that defense, which, if it had been correct, would have been a complete answer to the state's accusations. The assertions made to the police were identical with the defense urged before the jury. And the evidence of guilt, as found by the jury, was strongly convincing, and, in fact, uncontradicted, aside from the claim of alibi.

The contention made by defendant is met decisively by the opinion in PEOPLE V. HILLERY, SUPRA, 62 CAL.2D ----, ----, 44 CAL.RPTR. 30, 42, 401 P.2D 382, 394⁵ in which statements made by the defendant and constituting in effect an alibi were held to be erroneous, because the defendant had not been informed of his rights by the police officials, but that the admission of the statements was not prejudicially erroneous. In the majority opinion, the court says:

'The trial court committed error in admitting the statements. Nothing in the record indicates that the police informed defendant of his rights to counsel and to remain silent or that he otherwise waived those rights. The police obtained the statements during the accusatory stage since, at the time defendant uttered them, he was under arrest and the police were...