People v. Wheeler

• Citation: 71 Cal.App.3d 902,139 Cal.Rptr. 737
• Decision Date: 29 June 1977
• Docket Number: Cr. 7937
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Dell WHEELER, Dedendant and Appellant.

Page 737

139 Cal.Rptr. 737

71 Cal.App.3d 902

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Dell WHEELER, Dedendant and Appellant.

Cr. 7937.

Court of Appeal, Third District, California.

June 29, 1977.

Rehearing Denied July 26, 1977.

Evelle J. Younger, Atty. Gen. by Richard Lee Adams, Deputy Atty. Gen., for plaintiff-respondent.

James Dell Wheeler, in pro per.

Richard Alan Brown, Sunnyvale, for defendant-appellant.

JANES, Associate Justice.

Defendant appeals from judgment entered upon a jury verdict finding him guilty of aiding and abetting, with the use of force and violence, the commission of a rape (Pen. Code, §§ 261, subd. 3, and 264.1). ¹ , ²

The evidence produced by the People showed that defendant and his companion, Lawrence Williams, approached the victim as she was sitting beside a stream running through Bidwell Park in Chico. Behind her was a steep dirt embankment. After some casual conversation, the victim sought to leave. Defendant stood four to five inches from her on one side and his companion the same distance on the other, thus effectively preventing her departure from the area. Williams made sexual advances which the victim resisted. She was ordered by Williams to 'take off (her) clothes' but did not comply. Williams forcibly removed her halter top; both men fondled her breasts, repeatedly warning her to remain quiet.

Williams and defendant, over the victim's resistance, forcibly removed the rest of her clothing. She remained on her feet continuing to resist their advances, until Williams threatened to punch her in the mouth and to remove her to a more remote part of the park. At that point the victim stopped resisting and Williams achieved sexual penetration. The victim recalled defendant holding her arm while Williams was assaulting her. While Williams was engaged in the act of intercourse, two men approached the area. The victim screamed for help, frightening Williams off and away. Defendant confronted the two men, gave them a false explanation of the situation, and then fled with Williams when the victim told the men she knew neither of her two assailants. The two strangers assisting the victim testified she was shaky, nervous, confused and upset. The two also testified that defendant appeared to be pulling up and zipping his pants as he approached them.

Defendant was arrested the same day, and at that time told the arresting officer, 'They say I raped someone, but all I did was watch a friend do it.'

Defendant testified in his own behalf, denied that he had touched the victim, and further denied that the victim had offered any resistance to Williams' advances.

I

Defendant's challenge to the sufficiency of evidence supporting the judgment is without merit.

The well-established test for review, upon such claim, is whether there is substantial evidence to support the conclusion of the trier of facts, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Reyes (1974) 12 Cal.3d 486, 497, 116 Cal.Rptr. 217, 526 P.2d 225.) Viewing the record in the light most favorable to the respondent, as we are bound to do following a conviction (People v. Vann (1974) 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824), we find substantial evidence to support the jury's determination that defendant aided and abetted Williams in commission of the rape, and further, that force and violence were used.

When defendant and Williams approached the victim, they stood within four or five inches of her, one on either side, thus effectively preventing her departure from the area. After Williams untied her halter, both men fondled her bare breasts and both forcibly removed her pants. The victim recalled defendant holding her arm while Williams was committing the act of rape. Defendant did not leave until he and Williams were frightened by the approach of two men and by the screams of the victim calling attention to her plight. He falsely explained the situation to these two men, and then fled with Williams when the victim contradicted him. Under these circumstances, the jury could reasonably conclude that defendant aided Williams in the perpetration of the rape and in doing so used force and violence.

II

Defendant contends the jury's determination that he aided and abetted commission of rape was insufficient to justify imposition of the punishment provided by section 264.1, absent an express finding that he was acting in concert with Williams. The contention is meritless. Aiding and abetting need not in every case be synonymous with 'acting in concert.' However, on the facts of this case, as to defendant's participation in the rape, the terms may be so viewed. (People v. Calimee (1975) 49 Cal.App.3d 337, 340--341, 122 Cal.Rptr. 658.) The jury did find expressly that defendant was guilty of aiding and abetting an act of rape; therefore the element of multiple parties acting in concert is present. (People v. Calimee, supra.)

III

Finally, defendant contends it was reversible error to give an instruction defining the 'force and violence' element of Penal Code section 264.1, to mean any wrongful application of physical force against the person of another and that the slightest unlawful touching, if done in an insolent, rude, or an angry manner, would be sufficient. Defendant contends that such an instruction incorrectly defines force and violence when used in the context of a forcible rape. The amount of force required for a conviction of forcible rape (Pen. Code, § 261, subd. 2) is that amount of physical force required in the circumstances to overcome the victim's resistance. (People v. Peckham (1965) 232 Cal.App.2d 163, 168, 42 Cal.Rptr. 673, People v. McIlvain (1942) 55 Cal.App.2d 322, 331, 130 P.2d 131.) Defendant's contention...