People v. Whittington

• Decision Date: 09 November 1977
• Docket Number: Cr. 15727
• Citation: 74 Cal.App.3d 806,141 Cal.Rptr. 742
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Danny R. WHITTINGTON, Defendant and Appellant.

Page 742

141 Cal.Rptr. 742

74 Cal.App.3d 806

PEOPLE of the State of California, Plaintiff and Respondent, v. Danny R. WHITTINGTON, Defendant and Appellant.

Cr. 15727.

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

Nov. 9, 1977.

Joseph W. Starritt, III, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant appeals ¹ from a judgment of conviction entered on a jury verdict finding him guilty of rape accomplished by threats of great and immediate bodily harm (Pen.Code, § 261, subd. 3) and oral copulation (Pen.Code, § 288a). He contends that: 1) the trial court erred in the admission of evidence of a prior uncharged offense; 2) the trial court committed prejudicial error by instructing the jury as to the effect of his failure to deny or explain the evidence against him; and 3) he was deprived of the effective aid of counsel. ² We have concluded that there is no merit to any of these contentions and that, for the reasons set forth below, the judgment must be affirmed.

As there are no contentions concerning the sufficiency of the evidence, a brief summary of the pertinent facts, viewed most strongly in favor of the judgment, ³ will suffice. About 7 p. m. on Saturday, December 20, 1975, the victim, Ms. Sherman, a student, walked from her apartment at 1224 Leavenworth Street in San Francisco to 1817 California Street to attend a Christmas party at the residence of William Mabie. Ms. Sherman had never been to the Mabie residence before. While she was attempting to find the apartment building, she was approached by defendant who identified the building and also its nearby trade entrance doorway with rear steps leading to the apartment complex. He proceeded to lead Ms. Sherman, who followed cautiously. As she was leery of going down the steps she returned to the mail box area and located the one for the Mabie apartment; however, she could not find the right doorbell and entrance.

Thereafter, defendant returned and reiterated his directions about the steps on the other side of the trade entrance doorway. After inquiring whether defendant was attending the same party and receiving a positive answer, Ms. Sherman cautiously followed him. Defendant grabbed her, clamped a gloved hand over her mouth, told her to keep quiet and dragged her into a dark garbage room. When defendant asked for money, Ms. Sherman indicated that she only had $1.00 and some change but would be glad to obtain more from her apartment or cash a check at a market. She asked defendant not to hurt her but he did not reply. She heard him take his pants off and was told to remove only her pantyhose and was forced into acts of oral copulation and sexual intercourse. Defendant indicated that he had lost a couple of years and was trying to make up for lost time. He then twice said "Don't worry, I'm clean," and opened the door so that she could find her clothes. In the light of the opened door, Ms. Sherman carefully observed defendant's six foot three inch height, slender build, features, beard, haircut sideburns, and clothing, including a new pair of fur lined gloves. On the basis of these observations and subsequent recollections, she positively identified defendant as her assailant.

Ms. Sherman feigned tranquility after the incident and learned from defendant that his name was Ray and that he had been in prison for beating up a woman. Defendant disappeared after Ms. Sherman was buzzed into the Mabie apartment, where she called the authorities. She proceeded to a hospital where she was examined and found to be in an emotionally stunned and tearful condition. Ms. Sherman's vaginal smear tested positive for sperm and seminal fluid, as did her underpants.

She described defendant to two police officers and three days later identified defendant's photograph from a series of 13 shown to her by Inspector Sullivan. During the arrest of defendant at his residence, Sullivan observed a pair of dark fur lined gloves. Defendant maintained that the gloves belonged to his brother.

On December 24, 1975, Sullivan advised defendant of his Miranda rights. Defendant waived his rights, denied the attack on Ms. Sherman on December 20 and claimed that on December 20, from 6:30 p. m. on, he was in the company of Ms. Walton, Ms. Jay and Ms. Kay at their residence at 1720 Golden Gate Avenue. Defendant indicated that since Ms. Walton was his girlfriend, he had no need to rape Ms. Sherman.

Defendant's girlfriend, Ms. Walton, testified that on the evening of the Sherman incident, defendant was with her from 5 p.m. until the next morning, except for a brief trip to the store which he made around 10-11 p. m. Defendant had discussed the Peguillan incident, discussed below, with her, admitted serving time for it, but indicated that he should not be blamed as he was a kid. Defendant admitted that his middle name was Ray and that at the time of the Sherman incident, he was unemployed.

Defendant first claims error in the introduction of evidence pertaining to the following prior incident that had occurred on January 15, 1973: ⁴ About 5 p. m., Ms. Peguillan was parking her car at the intersection of Clay and Buchanan Streets (a short distance from the location of the attack on Ms. Sherman). After parking her car, Ms. Peguillan saw defendant jogging in place, and became frightened when defendant said hello. As she began to run away, defendant ran along beside her, attempted to make small talk, and then shoved her into a trash collection area between two houses. When she attempted to scream, defendant put his hands over her mouth and threatened to knock her down. After she pleaded with him not to hurt her, he replied he "hadn't had any in a long time" and forced her into an act of intercourse. Afterwards, he asked her for a dollar, removed one from her purse and instructed her to stay inside until he left. She complied and then reported the incident to the police and provided a description of defendant and his clothing, including a long sleeved gold sweat shirt with "Chief" on it.

Her report was received by Officer Long and his partner who were on vehicle patrol nearby. After being informed that the suspect had run into the nearby Presbyterian Hospital, the officers ascertained that a person matching the description of defendant had been in the hospital and had made an appointment for an examination; for this purpose, he had provided his name, telephone number and an address a few blocks from the hospital. Long proceeded to the address and arrested defendant after observing a gold sweat shirt with "Chief" on it that defendant identified as his own. Defendant denied the attack on Ms. Peguillan and indicated that from 5 p.m. that evening, he was at the Walton residence at 1720 Golden Gate Avenue. Defendant admitted at the instant trial that he had given Sullivan the same alibi at the time of the Peguillan incident.

There was no error in the admission of the prior incident. Defendant's alibi defense to the Sherman rape clearly placed in issue the question of identity. Evidence of other crimes is admissible to prove the identity of the perpetrator of the charged crime (Evid.Code, § 1101, subd. (b)). "(T)he inference of identity arises when the marks common to the charged and uncharged offenses considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses" (People v. Haston, 69 Cal.2d 233, 246, 70 Cal.Rptr. 419, 428, 444 P.2d 91, 100). "The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks" (emphasis in original; People v. Thornton, 11 Cal.3d 738, 756, 114 Cal.Rptr. 467, 479, 523 P.2d 267, 279.)

We think that the evidence in this case, viewed in the light most favorable to the People (People v. Thornton, supra, p. 746, 114 Cal.Rptr. 467, 523 P.2d 267), establishes beyond any doubt the probative reliability of the Peguillan incident. The following distinctive features common to both offenses were also presented to the trial court at an in-chambers hearing to determine the admissibility of the Peguillan incident. Here, both offenses: 1) occurred at about the same time, 5 p. m. and 7 p. m., and in the same general vicinity, i. e., several blocks from one another and from defendant's residence at 15 Middle Street; 2) began near an apartment house when defendant approached the victim on a public street; 3) included defendant's attempt to initiate a friendly conversation with the victim; 4) occurred in a garbage collection area near the street; 5) were initiated by the defendant's sudden seizure of victims with his hand clamped over the mouth; 6) ostensibly were for the purpose of robbery, as each victim was asked for money; 7) occurred while both defendant and his victims were only partially disrobed; he removed only his pants and each victim, only her pantyhose; 8) were consummated in a short period of time; 9) defendant told the victims not to worry because he was not diseased and that he had not had sexual relations for a long time; 10) defendant engaged the victims in conversation after consummation of the crime; 11) neither victim sustained any physical injury other than the accomplishment of the sexual act; 12) each victim was a young attractive Caucasian woman; and 13) defendant offered the identical alibi defense his presence at Walton's residence within walking distance of each incident.

We are aware of People v. Guerrero, 16 Cal.3d 719, 129 Cal.Rptr. 166, ...