People v. Villa

• Decision Date: 16 December 1957
• Docket Number: Cr. 3405
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond VILLA, Defendant and Appellant.

Page 828

318 P.2d 828

156 Cal.App.2d 128

The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond VILLA, Defendant and Appellant.

Cr. 3405.

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

Dec. 16, 1957.

Rhein, Levin & Jackson, Edward Levin, Jay Jackson, Jr., San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Thomas C. .lynch, Dist. Atty., City and County of San Francisco, Francis Mayer, Asst. Dist. Atty., San Francisco, for respondent.

PETERS, Presiding Justice.

Raymond Villa, Matteo Accetta and Salvador Rizzo were charged with rape, with a violation of section 288a of the Penal Code, with robbery, and with conspiracy to commit those crimes. All of the crimes were alleged to have been committed on August 1, 1956, against the same complaining witness, an adult woman. They were jointly tried. All were convicted of some of the offenses. So far as Villa is concerned, the jury acquitted him of rape and of conspiracy, but found him guilty of a violation of section 288a and of robbery. Villa appeals.

On the night of August 1, 1956, the three defendants, all of whom are over 21, and two male companions, Larry Palermo and Larry Pera, visited a bar in the Fillmore district to celebrate the fact that Palermo was leaving for army service the next day. They drove to the bar in Palermo's car from a gasoline service station operated by Pera and located some distance away from the bar, leaving Pera's car at the service station. This was about 9 p. m. At the bar was the complaining witness. She lived with her husband about a half block from the bar. She went down to the bar, alone, about 9 p. m. There she met one of the part-time bartenders whom she knew, had a drink with him, and he left. During the evening and up to about 11 p. m. she consumed about seven or eight Seven-Up Bourbon highballs. She testified that during the evening she danced with some sailors, and did not dance with appellant or with any of the men in his party. Several of the defendants testified that the complaining witness danced with several of the men in appellant's party, and this was corroborated by the bartender and the son of the owner of the tavern.

Sometime during the evening Rizzo went back to the gasoline station and got Pera's Plymouth automobile, a four-door sedan, and drove it to an alley near the bar. He gave the keys to Pera, who, in turn, gave them to appellant.

During the evening appellant conversed with the complaining witness and finally asked if he could take her home. The complaining witness testified that she refused the invitation. Appellant testified that she first agreed to his proposition, then changed her mind, then consented to it. From this point on the stories of the involved persons are widely divergent. The complaining witness testified that after she refused appellant's proposition, appellant left the bar, and a short time later, about 11 p. m., she left, intending to walk the short distance to her apartment. Outside the bar Villa accosted her, repeated his offer, and, when she refused, seized her by the arm and started to pull her toward Pera's car that was parked in a nearby alley. When she screamed and tried to pull away he struck her in the face and in the back of her neck. These blows partially stunned her and appellant threw her into the car. Appellant then drove to Aquatic Park and parked the automobile. During the ride to the park she testified that appellant was slapping and holding her to prevent her from getting out. After he parked, according to the complaining witness, appellant pulled off parts of her clothing and then forced her to have intercourse with him.

Appellant told a different story. He testified that after the complaining witness had agreed to go out with him, the two left the bar together and got in the Plymouth; that the car's battery was dead so he got out of the car, leaving the complaining witness alone, and went back in the bar and asked his friends to give him a push, which they did. This story about a dead battery and the push by his friends was corroborated by the appellant's companions. Some doubt is cast upon this story not only by the testimony of the complaining witness, but also because when the car was seized by the police the next morning the car started without difficulty and the owner of the car admitted that the battery had not been touched in the past several days.

Appellant, in addition to testifying that the complaining witness went with him voluntarily to Aquatic Park, testified that during the ride she stated that someone was following them, and that he then successfully got away from the car that was following them by taking several detours. He also testified that at Aquatic Park the complaining witness voluntarily consented to have intercourse with him. After this act of intercourse had been completed, appellant prepared to get out of the car to rearrange his clothing when another car containing the other two defendants and Palermo and Pera drove into the parking lot and parked about 50 to 75 feet behind the Plymouth. At the trial appellant testified that defendant Rizzo then came up and asked about his chances. Appellant told him that the complaining witness had been 'easy' with him, and for Rizzo to go ahead and try if the woman was willing. Appellant then walked back to and got in the other car. A short time later Accetta got out and went over to and got in the Plymouth with Rizzo and the woman. In a short time the door of the Plymouth opened and appellant saw the complaining witness' bare legs fly out and he heard her screaming. Appellant then went over to the Plymouth, looked in, and said 'What's going on in here? No need for that. Crazy or something?' Appellant saw that the woman had almost all of her clothes off, that Accetta had forced her head down and was forcing her to orally copulate while Rizzo was having intercourse with her from the rear. The complaining witness was not sure whether appellant was in the Plymouth while these acts were going on, while Accetta testified that all three defendants were in the back seat with the woman and that appellant had intercourse with her from the rear.

At any rate, appellant testified that he then got into the front seat of the Plymouth and started to drive towards the service station operated by Pera. He heard the complaining witness several times beg Accetta 'Please don't hit me anymore. Leave me alone,' but did nothing about it. He knew that the act of oral copulation was still going on, but did nothing about it. Defendant Rizzo then asked to be let out of the car so that he could walk to his automobile. Appellant stopped the Plymouth in an alley, and the other car stopped behind him. Appellant got out of the Plymouth and walked over to the other car. During this interval, defendant Rizzo, in front of appellant, took all the money from the complaining witness' purse, and dumped its other contents in the street. Appellant testified that he picked up these articles, returned them to the purse, and returned the purse to the car. He did not suggest to Rizzo that he should return the money taken from the purse.

Next, according to appellant, he drove to Pera's gasoline service station. The complaining witness was screaming and yelling. Accetta has taken her dentures and refused to return them. Appellant did nothing about this controversy. When the Plymouth arrived at the gasoline station the complaining witness was making so much noise that Accetta threatened to throw her in the bay. Appellant testified that he and Palermo restrained Accetta while the complaining witness escaped from the car, ran across the street to the entrance of a night club nearby, and asked some people to help her, declaring that she had been raped. They sent her to the police. The evidence of these people and of the police indicates that the complaining witness had been brutally beaten.

When appellant was first picked up for questioning he walked out of the district attorney's office without permission and drove away before he could be questioned, and when the police went to the home where he was staying, he ran out the back door and hid in the basement in an attempt to avoid arrest.

Appellant was acquitted of the rape and conspiracy charges but found guilty of a violation of section 288a of the Penal Code and of robbery. Admittedly, appellant did not directly participate in the commission of either of these crimes. He can be held, if at all, as a principal only as an aider and abettor. It is appellant's major claim that he in no way aided and abetted the criminal acts of his co-defendants. He contends that the evidence shows that he disapproved of their acts. He asserts that his cowardice in failing to prevent or restrain these men from doing what they did cannot support a finding that he aided or abetted them.

Before directly discussing the evidence something should be said about how this evidence must be reviewed in view of the fact that appellant was acquitted of the rape and conspiracy charges. The crime of aiding and abetting is a separate and distinct offense from that of conspiracy. People v. Huling, 71 Cal.App. 144, 234 P. 924. Although the rape and conspiracy charges involved some of the same acts as were involved in the section 288a Penal Code and robbery charges, the acquittal on the first two charges does not affect the validity of the conviction on the other two charges. People v. Stangler, 18 Cal.2d 688, 117 P.2d 321; People v. Amick, 20 Cal.2d 247, 125 P.2d 25. Section 954 of the Penal Code provides, in its last sentence: 'An acquittal of one or more counts shall not be deemed an acquittal of any other count.' Under this section, each count charging a separate and distinct offense must stand or fall on its own merits. The disposition of one count has no effect or bearing upon the other counts....