People v. Roth

• Decision Date: 20 July 1964
• Docket Number: Cr. 8997
• Citation: 228 Cal.App.2d 522,39 Cal.Rptr. 582
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alan Phillip ROTH II, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 582

39 Cal.Rptr. 582

228 Cal.App.2d 522

The PEOPLE, Plaintiff and Respondent, v. Alan Phillip ROTH II, Defendant and Appellant.

Cr. 8997.

District Court of Appeal, Second District, Division 3, California.

July 20, 1964.

Rehearing Denied Aug. 10, 1964.

Richard T. Sykes, Encino, under appointment by the District Court of Appeal, for defendant and appellant.

Stanely Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Peter Graber, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Justice.

The record contains evidence of these events:

On October 13, 1962, about 4 a. m. defendant, a youth of 18, accompanied by a juvenile named Tim, aged 17, arrived at Zuma Beach. They had been drinking Scotch whiskey and beer since 7 o'clock the previous evening, though by defendant's own statement he was not drunk. As they walked along the beach they saw a young couple, George and Betty, sleeping on the beach under a blanket. Defendant pulled off the blanket and attacked George, seizing him by the throat. Tim took Betty by the throat and lifted her up. While George fought with defendant, Betty broke loose and ran to their automobile. She started the engine, drove a few feet, and honked the horn. Tim followed her. In the dark she thought he was George, so she let him in. Tim pulled her out of the car and dragged her back to the beach. Tim then joined with defendant in hitting and kicking George, who was down on the sand. A few minutes later Betty again ran for the car. This time defendant caught her, knocked her down on the pavement and then took her by the hair and knocked her head against the pavement as he ordered her to stop screaming. Then he dragged her back to the vicinity of the blanket on the beach. After about ten minutes of fighting, George was too weak to resist further. Defendant then twisted George's arm behind his back and forced him to walk to the car. Defendant searched the car and inspected the registration slip and then brought George back to the beach. Defendant then ordered George to empty his pockets. This produced only thirty cents and a ball-point pen. At this point Tim and the defendant tied George, using a belt to hold the hands and a sweater for the feet.

Then defendant twisted Betty's arm behind her back and walked her down the beach about 200 feet, leaving Tim to guard George. At the end of this march defendant knocked Betty down and forcibly removed her clothing as she struggled and screamed. He told her he intended to have intercourse with her. Before he was able to do so, Betty escaped and ran to her car and drove away. Within a quarter of a mile she encountered a sheriff's patrol car. She led the deputy sheriffs back to the beach parking lot, where defendant and Tim were apprehended as they started to drive away in their car. The officers found George tied up on the beach just as his assailants had left him.

Defendant's testimony differed from that offered by the prosecution only in some details. Defendant said that when he saw the sleeping couple he lifted the blanket 'out of curiosity,' whereupon George jumped up and started to fight, and defendant fought in self-defense. After he had overcome George's attack, the two men walked to the car together, without compulsion, according to defendant. He later had to tie up George to keep him from starting to fight some more. Then defendant, according to his version, invited Betty to walk down the beach, and she acquiesced. Defendant admits he attempted to have intercourse with her before she ran away.

Defendant was tried before a jury on an information containing the following five counts: I, kidnaping of Betty (Pen.Code, § 207); II, assault with intent to rape Betty (Pen.Code, § 220); III, assault by means of force likely to produce great bodily injury on Betty (Pen.Code, § 245); IV, kidnaping of George (Pen.Code, § 207); V, assault by means of force likely to produce great bodily injury on George (Pen.Code, § 245). The jury was instructed that if they found defendant guilty of either count II or count III, they must acquit him of the other. The verdict was guilty as to counts, I, II, IV and V, and not guilty of count III. This appeal is from the judgment.

The evidence abundantly supports the four guilty verdicts. There is no merit in defendant's contention that there was no kidnaping because the movement of the victims was 'incidental to the assault.' Cotton v. Superior Court, 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241, relied upon by defendant is readily distinguished. In the Cotton case a group of men engaged in a labor dispute invaded a barracks where the nonstriking workers were quartered. In the course of the fighting, some of the nonstrikers were pushed, chased and dragged around. The Supreme Court concluded 'All 'asportation' in the instant case would appear to be only incidental to the assault and rioting.' (56 Cal.2d at p. 464, 15 Cal.Rptr. at p. 68, 364 P.2d at p. 244.)

In the Cotton case there was no apparent attempt to imprison the victims or deprive them of their freedom, except momentarily, or to move the victims, except as a means of brief bodily assault.

In the present case the fight with George was over and the victim had been subdued before he was moved. Then he was marched as a prisoner to his car--a distance variously estimated at 15, 20 and 25 feet--held there while defendant searched the car, then taken back to the beach where he was securely tied, and then abandoned in this condition when his captors were ready to leave.

Betty was captured as she attempted to drive away for help during the assault on George. She was dragged back to the beach and restrained there until she escaped temporarily, then was dragged from the car to the beach a second time, and later marched a distance of 200 feet up the beach as defendant's prisoner to the site of the attempted rape.

Both of the victims in this case were subjected to the personal indignity and hazard of being deprived of their liberty for an appreciable period and being moved under such restraint for appreciable distances to suit the desires of their captors. The prosecution's evidence shows that the purpose and effect of the movement went far beyond the incidents of an assault. It also clearly supports the finding that the removal of both victims was forcible. 'The cases hold that it is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.' (People v. Monk, 56 Cal.2d 288, 295, 14 Cal.Rptr. 633, 636, 363 P.2d 865, 868.)

There is some merit in defendant's contention that the jury should have been given the instructions which he requested on the right of a person assaulted to stand his ground and defend himself. No instructions upon this subject were given. The applicable law is stated in People v. Burns, 88 Cal.App.2d 867, 871, 200 P.2d 134, 136: 'It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. [Citing cases.] The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citing cases.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.'

The proposed instructions on self-defense would not have applied to any charge other than that of assault upon George. Defendant has never contended that he needed to defend himself against Betty. As for count IV, the kidnaping of George, all of the evidence is to the effect that George became exhausted and stopped fighting before he was taken to the automobile and then back to the beach. The issue on this count is whether George went voluntarily, or whether he was moved under force. There is no claim that defendant moved George to the car and back as a means of self-defense.

Defendant makes the further contention that the court should have instructed the jury that it might convict defendant of simple assault, as a lesser offense included within the charge of assault by force likely to produce great bodily injury. The record shows defendant failed to request such an instruction. What defendant's counsel did do was to hand to the clerk, with his requested instructions, a printed form, supplied by the court, designed to be adapted as an instruction on a lesser included offense by filling in the blanks to indicate the offenses referred to. ¹

The record shows that the trial judge marked this blank 'Refused,' and added these words, 'Form not filled in or directed to specific offense.'

The act of handing this blank form to the clerk cannot be regarded as a request to instruct the jury as to any particular included offense. It would be manifestly unfair to the trial court and to the People to give any legal effect to such a practice, and leave the defendant in a position to assert, on appeal, that he meant to request an instruction on some particular included offense. The inadequacy of this blank form is particularly apparent where the information contains several counts, and there are several lesser offenses which might be deemed to be within the scope of the pleading.

It has often been said that the trial court need not instruct on included offenses unless the defendant so requests. (See Witkin, California Criminal Procedure (1963) § 480; Fricke, California Criminal Procedure (6 ed. 1962) p. 349 (but see p. 317).) ²

In People v. Bailey, 142 Cal. 434, 76 P. 49, the court pointed out that this rule gives the defendant his choice whether lesser offenses will be submitted to the jury. The court said (142 Cal. at p. 436, 76 P. at p. 49):

'The rule as above stated is, upon the whole, not unfavorable to a defendant. If he desires the jury to understand that they are not compelled to either find him guilty of the high crime charged or acquit him...