People v. Saldana

• Citation: 43 Cal.Rptr. 312,233 Cal.App.2d 24
• Decision Date: 16 March 1965
• Docket Number: Cr. N
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Rodriguez SALDANA, Defendant and Appellant. o. 4286.

Page 312

43 Cal.Rptr. 312

233 Cal.App.2d 24

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Rodriguez SALDANA, Defendant and Appellant.

Cr. No. 4286.

District Court of Appeal, First District, Division 2, California.

March 16, 1965.

Hearing Denied May 12, 1965.

David C. Marcus, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., of the State of Cal. Albert W. Harris, Jr., and John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

Appellant Joseph Saldana was charged by information with forcible rape, in violation of Penal Code, section 261, subdivision 3; and possession of marijuana, in violation of Health and Safety Code, section 11530. After a trial by jury, appellant was found guilty of rape and not guilty of possession of marijuana. He prosecutes this appeal from the judgment accordingly entered.

Shortly before 2 a. m. on the morning of April 19, 1962, Theresa Ferreira left a Redwood City tavern known as Ray's Place and walked to her home, which was located some two blocks away, at 532 MacArthur Street. Mrs. Ferreira opened the gate to her front yard and walked to her front door, which was located in the carport. As she opened her purse to get out her key, she heard footsteps behind her, and, upon turning, recognized appellant Saldana, whom she had seen earlier at Ray's Place. Mrs. Ferreira ordered him to leave her yard and threatened to call the police, but appellant refused to do so and asked her who was at home. When Mrs. Ferreira told him that her brother and children were at home, appellant came toward her and struck her on the side of the head. Although Mrs. Ferreira screamed and struggled with appellant, he ultimately forced her down on a couch located inside the carport near the front door. After threatening to kill her if she screamed again, appellant had sexual intercourse with her. Upon completing the act, appellant observed an approaching police car, got up and ran around the right side of the house.

Louis Paglierani and Owen Bell, two deputy sheriffs for the County of San Mateo, had been on routine patrol on the early morning of April 19, when they received a radio call, shortly after 2 a. m., that a woman was screaming for help at 532 MacArthur Street in Redwood City. They immediately drove to that address, arriving at approximately 2:15 or 2:30 a. m., and found Mrs. Ferreira seated on a couch at the front of the residence. Mrs. Ferreira was crying and appeared to be hysterical and somewhat incoherent. When questioned by the two deputies, she stated that she had been raped, but was unable to provide a detailed description of her assailant. She stated only that she had seen him before at Ray's Place, that he had dark hair, but that she did not know his name.

Following a fruitless search of the area surrounding the Ferreira house, Deputies Paglierani and Bell drove Mrs. Ferreira to Sequoia Hospital, where a vaginal smear was taken and found to contain motile sperm. The two deputies then contacted the owner of Ray's Place but were unsuccessful in obtaining any further information as to the identity of Mrs. Ferreira's assailant. They then drove to the home of Wayne King, the bartender at Ray's Place, and told him of the general description which Mrs. Ferreira had given of her attacker. King stated that appellant Saldana fitted the description and that he had left the tavern immediately after Mrs. Ferreira. King then accompanied Deputies Paglierani, Bell, White and Pinoti to Florence Street in Redwood City, where he pointed out the residence where he believed appellant lived.

Deputies Paglierani and White then knocked on the front door while Bell and Pinoti stationed themselves at the front and back of the house. The door was opened by a woman who admitted the two deputies to the house and directed them to appellant's bedroom. Upon entering the bedroom, they awakened appellant, who was asleep in bed. After appellant had identified himself, he was placed under arrest for rape. Bell and Pinoti then entered the bedroom, and appellant was asked what clothes he had worn on the evening of April 18. Although there were various articles of clothing scattered about the room and appellant was at first unwilling to indicate which of them he had worn on the preceding evening, the question was repeated several times and appellant ultimately identified a particular pair of pants and a shirt. These items were taken into custody by Deputy Bell. In response to other questions concerning his connection with the Ferreira assault, appellant steadfastly denied any involvement. When asked how he had obtained two fresh scratches on his forehead, he stated only that he had been in a fight.

Sometime between 5 and 6 a. m., appellant was taken to the county jail, where he was subsequently booked for rape. When questioned shortly after his arrival at the jail, appellant asked permission to call his attorney, but was not allowed to do so. Appellant was then placed in a lineup and identified by Mrs. Ferreira as her assailant. At 8:30 or 9 a. m., appellant was shown the pants and shirt which he had identified earlier, and he again admitted that he had worn them on the evening of April 18 and the early morning of April 19. Prior to making this admission, appellant was informed that anything he said might be used against him, but was still not permitted to call an attorney.

On April 26, 1962, the clothing which had been identified by appellant was examined by a criminologist, and a seminal stain of fairly recent origin was found on the fly of the pants. The shirt was covered with blue fibers which were of the same type and color as the sweater worn by Mrs. Ferreira at the time of the attack.

On the morning of April 27, 1962, the criminologist again had occasion to examine the shirt identified by appellant and found a marijuana cigarette in the pocket. Appellant was immediately so informed, but denied all knowledge of how the cigarette came to be in the pocket. He was also questioned as to the seminal stain on the pants and stated that he had had intercourse with an unidentified woman two or three days prior to his arrest. When again asked about the scratches on his face, he stated that he and two companions had driven to a San Carlos drive-in, where they had become involved in a fight. The companions were known to him as 'Henry' and 'Jerry,' and he thought that the last name of one was 'Lopez.'

The criminologist testified that the shirt in which the cigarette was found had been lying in the laboratory in a bag from April 19 to April 27, and that a considerable number of people had access to the laboratory.

The criminologist's findings, together with appellant's admission that he had worn the clothing in question on the evening of April 18 and the morning of April 19, were admitted into evidence as part of the prosecution's case.

Appellant, testifying in his own behalf, stated that he had been at Ray's Place continually from 9 p. m. on the evening of April 18, 1962, until shortly after 2 a. m. on the morning of April 19, 1962. Sometime during the evening, he played a pinball bowling game with the bartender, Mrs. Ferreira, and a man named Cortez, for an hour to an hour and one-half. Although he had seen Mrs. Ferreira in the tavern before, he only spoke to her once during the course of the evening. He saw her leave the tavern at approximately 2 a. m., and a few minutes later King, the bartender, asked him to lock the door. He went to the door, looked out, and saw two men known to him as Henry Lopez and Jerry outside in a car. He immediately left the bar and suggested that the three of them drive to a restaurant in San Carlos. Upon arriving at the restaurant, which turned out to be closed, appellant and his two companions became involved in a fight with three or four unidentified persons. Appellant was then driven home by his two companions. He went to bed and slept until he was awakened by the sheriff's deputies at 4 or 4:30 a. m. He denied that he had raped Mrs. Ferreira or that the marijuana cigarette was his.

Appellant contends that the filing of the information charging him with rape and possession of marijuana was in violation of article I, section 8, of the California Constitution because the latter offense was not charged in the complaint and was totally unrelated and unconnected with the offense of rape which was charged in the commitment order. Appellant further asserts, upon the same reasoning, that it was error to deny his motion to sever the two counts charged in the information. We agree with both contentions.

Article I, section 8, of the California Constitution provides that 'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.'

Penal Code, section 739, provides that 'When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.' (Emphasis added.)

Although the above-quoted statute contains extremely broad language, it must be construed in connection with the constitutional provision, and the courts have accordingly held that an information would be contrary to the Constitution if it designated a crime or crimes unrelated to or unconnected with the transaction which was the basis for the commitment order. In the leading case of People v. Bird (1931) 212 Cal. 632, 300 P. 23, the court held that the crime of murder, as...