People v. Smith

• Decision Date: 01 July 1968
• Docket Number: Cr. 13991
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent. v. John Alexander SMITH, Defendant and Appellant.

Page 670

69 Cal.Rptr. 670

263 Cal.App.2d 631

The PEOPLE of the State of California, Plaintiff and Respondent. v. John Alexander SMITH, Defendant and Appellant.

Cr. 13991.

Court of Appeal, Second District, Division 1, California.

July 1, 1968.

For Opinion on Hearing, see 90 Cal.Rptr. 1, 474 P.2d 969.

Jack A. Rose, Anaheim, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

FOURT, Associate Justice.

John Alexander Smith appeals from the judgment by the court, sitting without a jury, finding him guilty of four counts of kidnaping and forcible rape.

In an amended information filed by the District Attorney of Los Angeles County, appellant was charged in four counts with kidnaping and forcible rape. It was therein alleged as follows: Count I, that on or about February 1, 1967, Smith did wilfully, unlawfully, feloniously and forcibly kidnap and carry away Delores Burton; Count II, that on or about November 1, 1966, Smith did wilfully, unlawfully, feloniously and forcibly steal, take and arrest Audrey George, and carry the said Audrey George to another part of Los Angeles County; Count III, that on or about November 1, 1966, Smith did wilfully, unlawfully, feloniously and with force and violence overcoming her resistance have and accomplish an act of sexual intercourse with and upon Audrey George, a woman who was not then and there defendant's wife, without her consent and against her will; Count IV, that on or about January 21, 1967, Smith did wilfully, unlawfully and feloniously and forcibly attempt to steal, take and arrest Karla [sic ] Bradswell [sic ] to another part of Los Angeles County. The court found Smith guilty as charged, denied probation and sentenced him to the state prison for the term prescribed by law, the sentences as to Counts I, II and IV to run concurrently and the sentence on Count III stayed pending appeal.

Appellant contends that the evidence was insufficient to sustain his conviction for the rape of Audrey George, and as to that contention we have further reviewed the record to determine whether defendant was denied due process when he was subjected to a one-man showup for identification by Delores Burton. We conclude that appellant was convicted on sufficient evidence and that he was not deprived of due process by the identification procedure. The sequence of events resulting in the charges herein related follow in chronological order.

At about 10 p.m. on November 1, 1966, Miss Audrey George, then 21 years of age, was sitting on a bench at the corner of Vernon and Vermont Avenues waiting for a bus. Suddenly defendant came up behind her, placed a pointed metal file against her neck, took hold of her arm and ordered her to get up and accompany him. He walked her down Vermont Avenue and up a side street holding the file tip against her neck and threatening that if she screamed or tried to escape he would kill her. Then her forced her to enter a vacant house, remove her lower clothing and submit against her will to an act of intercourse, all by the use of force and threats of harm. Once the act was completed, Smith allowed Miss George to dress, and accompanied her back to Vermont Avenue. He remained with her while she called a friend, Edward Johnson, to come and get her, then left her at the bus stop to await Johnson's arrival. These events took about an hour, and about fifteen minutes later Johnson picked up Miss George and took her home. When Johnson learned what had happened to her he called the police and Miss George, who was single and had never before had sexual intercourse, made a personal report to the police in the morning. At that time she described her attacker to the police and several months later she identified him in a police lineup.

At about 9:30 p.m. on January 21, 1967, Mrs. Carla Braswell arrived home and parked on 38th Street around the corner from her apartment. She locked her car and as she started to walk toward her apartment, the defendant approached her to ask where Vernon was located. She replied that it was about two blocks south and as she turned away, Smith grabbed her left arm and threatened her with a long screwdriver, telling her that if she screamed he would kill her. He then walked his victim back to the driver's side of her car and told her to unlock the door. She said that if he wanted the key, he would have to get it out of her purse for himself because she was too nervous. Smith took the purse and as he searched for the key a station wagon pulled around the corner. Mrs. Braswell ran to the station wagon and told the occupants that a man was trying to molest her. The driver started to park the car, but Smith threatened to kill the occupants if they got out of the car. While Smith was preoccupied in this manner, Mrs. Braswell ran to her apartment and told her husband what had happened. He called the police and when they arrived Mrs. Braswell accurately described appellant. About a week later she identified him from a police lineup.

At about 11 p.m. on February 1, 1967, Miss Delores Burton was standing on a street corner near Santa Barbara and Vermont in Los Angeles when appellant came up behind her, took hold of her arm, and threatened her by holding a long metal object against her neck. He told her that if she screamed or attempted to run he would blow her brains out. He forcibly walked her away from Santa Barbara Avenue down a side street holding his weapon, a metal screwdriver, against her side. He took her to some shrubbery growing in a nearby alley and there he commanded her to undress. She started to remove her clothes, then told him she thought she saw the police coming, and when appellant stooped to retrieve his screwdriver, she ran. Mrs. Burton ran toward lights and did not stop until she came to the entrance of the Food Giant market on Santa Barbara. Appellant chased her to the market, but ran away when he saw people standing near the entrance. Miss Burton went to her home a couple of blocks away and then called the police, who arrived at her residence promptly. She described her assailant to them and was taken immediately to the police station.

On the same evening, John Wesley was sitting in his car in the parking lot at the Food Giant market on Santa Barbara near Vermont. Miss Burton ran directly in front of his car, followed closely by Smith who was chasing her. When Miss Burton reached the entrance of the market, Mr. Wesley observed that Smith kept going straight across the street. Mr. Wesley left the parking lot in his car to follow the defendant and a short distance away he met the police in which Officer Jay Krech was patrolling the area with his partner. It was a cold night and the officers had noticed the defendant walking down 40th Place near Vermont because he was wearing dark trousers with a short sleeved T-shirt and carrying his jacket over his arm, which had caused them to comment. Soon they met John Wesley, who described Miss Burton's assailant and the description reminded the officers of the man they recently had seen. John Wesley followed the patrol car until, less than ten minutes later, they apprehended appellant, who was perspiring and appeared to be very warm, as if he had been running or working out. They placed Smith in custody and took him to the police station.

When Miss Burton arrived at the police station at about 11:30 p.m. she was taken to see a person who was sitting in another room with a police officer and she was asked whether that was the person who had attacked her. She responded...