People v. Thornton

• Decision Date: 21 June 1974
• Docket Number: Cr. 12099
• Citation: 523 P.2d 267,114 Cal.Rptr. 467,11 Cal.3d 738
• Court: California Supreme Court
• Parties: , 523 P.2d 267 The PEOPLE, Plaintiff and Respondent, v. Robert Emmett THORNTON, Defendant and Appellant.

Page 467

114 Cal.Rptr. 467

11 Cal.3d 738, 523 P.2d 267

The PEOPLE, Plaintiff and Respondent, v. Robert Emmett THORNTON, Defendant and Appellant.

Cr. 12099.

Supreme Court of California.

June 21, 1974.

Rehearing Denied July 25, 1974.

Morris Lavine, Los Angeles, and James E. Patterson, Whittier, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Phillip C. Griffin and Norman H. Sokolow, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Robert Emmett Thornton was charged by information with two counts of kidnaping for the purpose of robbery (Pen.Code, § 209) ¹ one count of simple kidnaping (§ 207), two counts of robbery (§ 211), four counts of rape (§ 261), two counts of sex perversion (§ 288a), and one count of sodomy (§ 286). His motion under section 995 was granted as to the four rape counts, and the counts were renumbered pursuant to stipulation of counsel. After a trial by jury he was found guilty as charged of the eight counts remaining. As to each of the two counts of kidnaping for the purpose of robbery it was found that the victim suffered bodily harm; as to the two robbery counts one was found to be of the first degree and one of the second degree; as to each of the two sex perversion counts it was found that the victim's participation was compelled by force, violence, duress, menace, or threat of great bodily harm. The jury also found that defendant was armed with a deadly weapon at the time of the commission of all of the charged crimes excepting one of the section 209 counts and one of the section 211 counts.

At the conclusion of further proceedings on the issue of penalty the jury determined that defendant should suffer death as to one of the section 209 counts and life imprisonment without possibility of parole as to the other.

Defendant then moved that the court hold an evidentiary hearing on the question whether the death penalty provided for in section 209 is offensive to the cruel and unusual punishment provisions of the state and federal Constitutions. The motion was granted and there ensued a lengthy hearing in the course of which both the defense and the prosecution called numerous witnesses. At the conclusion of the hearing the court made findings of fact and conclusions of law to the effect that the provision in question did not offend the indicated constitutional prohibitions.

Defendant was sentenced to death and life imprisonment without possibility of parole respectively on the two counts of kidnaping for the purpose of robbery with bodily harm. He was sentenced to state prison for the term prescribed by law as to the other six counts. ² His appeal is automatic. (§ 1239, subd. (b).) In People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, we held that the death penalty violated our state constitutional prohibition against cruel or unusual punishment (Cal.Const., art. I, § 6.) ³ And in Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the United States Supreme Court ruled that imposition of the death penalty in these circumstances contravened the federal Constitution. As defendant's death penalty must therefore be set aside, it is unnecessary to consider the claims of error arising out of his penalty trial. ⁴ We proceed to a determination of defendant's contentions relative to the judgment of guilt.

The evidence in this case, viewed in the light most favorable to the People, showed that defendant, during the six-month period extending from February to July of 1966, engaged in a course of criminal conduct wherein he succeeded in gratifying perverse sexual desires, by means of brutal force causing bodily injury, upon the unwilling persons of five different women whom he kidnaped at different times and places for that purpose and the additional purpose of robbery. The eight counts of which defendant was found guilty arose from his conduct as to three of the women; evidence as to the remaining two women was admitted for the purpose of showing his identity through a common plan.

Although it is not necessary to our decision in this case that we set forth in minute detail the unsavory particulars of each of the five assaults as to which the prosecutor produced evidence, our resume will include certain details which will be relevant to contentions which we later consider. Although, as indicated above, the evidence concerning two of the five women was admitted only for the purpose of identifying defendant as the perpetrator of the charged acts relating to the remaining three women, our summary will consider the evidence as to all five women at this point in the interest of preserving chronological order.

(1) At 8 p.m. on February 14, 1966, Eileen S., an unmarried girl 18 years of age, left her place of employment in Huntington Park and drove to a drugstore in Downey to make a purchase. When she returned from the drugstore and was entering her car defendant appeared suddenly and forced his way inside the car on the driver's side. He put his arm around her throat and ordered her not to look at him. When Miss S. asked him what he wanted he replied: 'I just want your money; I am not going to hurt you.' Keeping his right arm around the young woman's throat, defendant started the car and drove out of the parking lot. They proceeded in this manner--defendant driving the car with his left hand while holding his victim by the throat with his right arm--for a distance of some four blocks, where defendant parked the car. Again ordering Miss S. not to look at him, defendant then demanded that she give him money from her purse. When she had done so he seized her and, telling her that he would kill her if she screamed, began to undress her. Miss S. was crying and pleading at this time, but she was too frightened to scream. When she was completely undressed defendant performed an act of sexual intercourse upon her. Then, forcing Miss S. to assume a position with her head between her legs and stating that he would return and kill her if she moved from that position, he got out of the car and fled. When defendant had gone Miss S. put on her coat and ran to a nearby house where she called the police. In her description of defendant she noted that he smelled of gasoline and grease.

(2) On June 3, 1966, Marcia B., an unmarried girl 19 years of age, departed from the Los Angeles County home of her fiance, where she had been visiting him and his parents, and began driving north to her home in Montana. However, she became lost when she made a wrong turn off the freeway onto the Angeles Forest Highway. As she was proceeding down this highway she noticed at one point a light colored Ford automobile parked by the side of the road; a few moments later this car, driven by a single male occupant, passed her, and she did not see it again. Shortly thereafter she came upon defendant standing in the middle of the road and waving his arms. Thinking that he needed help she slowed down to stop, and before her car had been brought to a complete stop defendant opened the door and placed his foot on the brake. Miss B. began to struggle with defendant in order to get him out of the car and pressed on the accelerator, but defendant overpowered her and brought the car to a stop. Defendant then tied Miss B.'s hands with a rope, pushed her into the back seat, and told her to lie down. He also told her not to look at him, and when she began to scream he told her that he would kill her if she continued. The defendant gagged and blindfolded Miss B. and tied her feet and, after he had gone through her purse and wallet, drove some distance to a remote area. There he untied her feet and led her through bushes to a small clearing, where he tied her down to stationary objects, completely undressed her, and proceeded to perform upon her a series of cruel and brutal acts of a sexual nature, most of which were calculated to cause pain and some of which caused severe injury. ⁵ Several times defendant expressed his desire and intention to hurt Miss B. At length defendant released her from the stationary objects to which she had been tied and led her, still gagged and blindfolded, back to her car, where he again tied her hands and drove away with her lying in the back seat. After about 10 minutes he stopped the car, untied Miss B., and removed her gag and blindfold. He then ordered her to wait 15 minutes before departing and, stating 'Remember I can still kill you,' left on foot. After waiting 10 minutes Miss B. drove to Pasadena and reported the incident to the police. She noted that her assailant 'smelled like he had been around machinery, like a truckdriver would.'

(3) One evening in April of 1966, Mrs. Edith B., aged 53, became acquainted with defendant at a tavern in Downey, and they, along with a married couple who were friends of Mrs. B., spent the evening dancing at another tavern. Mrs. B. did not see defendant again until June 18, 1966, when she and the same married couple again encountered him the tavern where they had met. They became reacquainted, and defendant suggested that the four of them go to a certain restaurant for some steaks. They left the tavern and Mrs. B. agreed to ride to the restaurant with defendant in his car, her friends riding in their own car. As soon as Mrs. B.'s friends had driven away toward the restaurant, however, defendant made a statement indicating that he had other intentions, and when Mrs. B. attempted to leave the car he grabbed her by the hair and told her to lie down. Then defendant drove for five or ten minutes to a place among some apartments, parked, ordered Mrs. B. to disrobe, and announced that he was going to have sexual intercourse with her. When she protested he put his hand over her mouth and forcibly undressed her. He threw her purse, which had $60 or $70 in it, into the back seat and, partially disrobing himself, attempted to perform an act of sexual intercourse. Mrs. B....