People v. Wiley, Cr. 13256

• Citation: 57 Cal.App.3d 149,129 Cal.Rptr. 13
• Decision Date: 09 March 1976
• Docket Number: Cr. 13256
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Wayne WILEY, Defendant and Appellant.

Page 13

129 Cal.Rptr. 13

57 Cal.App.3d 149

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Wayne WILEY, Defendant and Appellant.

Cr. 13256.

Court of Appeal, First District, Division 4, California.

March 9, 1976.

Rehearing Denied April 8, 1976.

Hearing Denied May 6, 1976.

Rodger N. Bolles, Santa Cruz (Court appointed), Albert Jonathan Wittwer, Santa Cruz (Court appointed), for defendant and appellant.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, James D. Hurwitz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KEANE, Associate Justice. ^*

This cause is again before the court pursuant to a transfer from the Supreme Court for reconsideration in the light of People v. Lent (1975) 15 Cal.3d 481, 484, 124 Cal.Rptr. 905, 541 P.2d 545.

Kenneth Wiley was charged with kidnapping (Pen.Code, § 207), robbery (Pen.Code, § 211), rape (Pen.Code, § 261), and oral copulation by force (Pen.Code, § 288a). Following a jury trial, he was found guilty of kidnapping and second degree robbery. The court declared a mistrial as to the charges of oral copulation and rape. Defendant appeals from the judgment of conviction.

On the evening of September 20, 1973, J. E. was driving past Telegraph Avenue in Oakland. She stopped the car when appellant and his brother, R. D., waved from across the street. J. E. agreed to take them to Providence Hospital, where R. D. was to have medical treatment for a leg injury. Upon appellant's request, J. E. stopped at a liquor store so that appellant could purchase some wine for his brother to ease his pain. After arriving at the hospital, J. E. and appellant drank a few sips of wine while R. D. received treatment inside. Appellant asked J. E. whether she had ever made love to a black man, whether she wished to make love with him, and stated that he wanted to kiss her. J. E. said no, but appellant pulled her to him and kissed her anyway. When J. E. told appellant that he would have to stop or get out, he apologized.

When R. D. returned, J. E. told them that she was on her way to visit a friend and agreed only to drop them off at a liquor store. Appellant bought some more wine at the store and asked to be driven home. J. E. agreed but told them that was all she would do. She followed appellant's directions through an industrial area in West Oakland and stopped the car briefly so that appellant could urinate. Appellant returned to the car and told her that he was going to drive. Although J. E. tried to brace herself in her seat, appellant pushed her aside and said 'You're going to give us some pussy.' J. E. told him no, but appellant turned to his brother and said, 'Well, then, you better get out a gun.' R. D. made a motion as if he were pulling out a gun from his pocket. J. E. was too afraid to attempt an escape; she implored them not to hurt her. Appellant indicated that they would not hurt her if J. E. did what she was told.

J. E. and appellant moved to the back seat as R. D. offered to drive. Appellant fondled J. E.'s breasts and put his hand into her pants. R. D. stopped the car shortly thereafter. Appellant pulled off J. E.'s pants, handed them to his brother, and told him to look through the pockets. J. E. had been carrying a five dollar bill in her pants. While still in the back seat appellant forced J. E. to orally copulate him. She then followed appellant and had intercourse with him beside the car. R. D. proceeded to have sexual intercourse with J. E. after appellant returned. J. E. discovered that the five dollar bill was missing. When she asked why her money had been taken appellant replied, 'We don't fuck for nothing.' J. E. asked to be taken back to Telegraph Avenue so that she could go home. Over her objections, appellant told her that they would first go to purchase gasoline for her car. As they waited in line in a service station, appellant handed his brother a pair of handcuffs. J. E. felt 'silently threatened.' They then went to another station nearby. Appellant paid for gasoline with three one-dollar bills and J. E. drank several sips of wine in order to calm down.

Upon leaving the second station J. E. again demanded to be taken home. Appellant threatened to 'drive us all off the road and kill us' if she did not remain quiet. They stopped briefly at two apartments, and the brothers continued to fondle J. E.'s breasts while she remained in fear of her life.

By coincidence, two Oakland police officers were looking for a robbery suspect when they observed that appellant resembled the man they were seeking. They drove up behind J. E.'s car. J. E. was told not to say anything. She managed, however, to signal one of the officers with her eyes. The officer observed R. D. turn and reach into his pocket. Fearing that R. D. was reaching for a weapon, the officer ordered him out of the car. J. E. got out, took the officer's arm, and said 'Help me, they kidnapped me and raped me.' The officer removed a set of handcuffs from the pocket into which R. D. had reached. A search of appellant disclosed a five dollar bill and a straight edged razor in his pants pocket. The five dollar bill was returned to appellant and he and R. D. and one Michael Banks were placed in a patrol wagon summoned by the officers. After the patrol wagon had left the officer realized that the five dollar bill might be evidence and called the patrol car to retrieve it from appellant. When the wagon arrived at the city jail, the driver asked the jailer to look for a five dollar bill. By this time, however, a fourth occupant of the wagon, who had not been handcuffed, had been released without search. Previously she had been seen reaching into appellant's pocket and giving cigarettes to the other three suspects. The five dollar bill was never recovered.

Appellant testified on his own behalf. He admitted that most of the events as told by J. E. had actually occurred but claimed that J. E. had consented. While they were waiting for R. D. at the hospital, appellant testified, he offered to put three dollars of gas into her car if she would ride around which him, smoke some marijuana, drink some wine and engage in sexual intercourse with him. After leaving the hospital and buying some more wine, they went directly to the spot where appellant and J. E. had intercourse. Appellant denied ever engaging in oral copulation with J. E. or telling his brother to look through J. E.'s pants pockets. R. D. then had intercourse with J. E. Appellant testified that they thereafter went to the gas stations and to the two apartments with J. E.'s consent. He admitted knowing that his brother had a pair of handcuffs but denied seeing them on the evening in question. Appellant claimed the officer was lying when he testified that appellant had a five dollar bill in his pants pocket.

Appellant asserts that it was improper to permit impeachment by evidence indicating that he had previously been in police custody. Appellant, on direct examination, stated that he had given a statement to the police while in custody denying sexual relations with the prosecuting witness. This statement was in direct conflict with his testimony in court. One of his explanations, on cross-examination, ¹ as to why he had lied in making the statement, was '. . . I told him what happened and I told him the only reason why I wasn't going to put down on those papers that I did have sex with her is because I was scared and didn't know what was happening, then in custody, and I assumed naturally the statement had never left the room where him and I were.'

In People v. Lent, 15 Cal.3d 481, 484, 124 Cal.Rptr. 905, 907, 541 P.2d 545, 547, the court stated: 'When Mrs. Smith was on the stand as a prosecution witness, defendant's counsel sought to impeach her by inquiring into a five-year-old misdemeanor conviction. Upon objection being sustained, counsel made an offer of proof, conceding therein that his sole purpose was to reflect upon the credibility of the witness. ( ) From the celebrated case of Sharon v. Sharon (1889) 79 Cal. 633, 673--674, 22 P. 26, 131, to date, it has been hornbook law that testimony relating to specific instances of misconduct is inadmissible to attack the credibility of a witness. This has always been interpreted to require exclusion of evidence concerning prior misdemeanor convictions.' The court pointed out that the only exception is specifically provided in Evidence Code section 788, which permits impeachment by a prior felony conviction and the current trend is toward limiting such impeachment.

The case at bar differs from Lent, in that Lent is the usual case of opposing counsel attempting to discredit a witness by offering evidence of a prior conviction that has no relation to the case at bar and is not within the scope of any question raised on direct examination.

In the instant case, the basic issue was whether the appellant or the prosecution witness was telling the truth. The fact that appellant had lied on a material matter in making the statement to the police was relevant and it was proper for his attorney (Evid.Code, § 785) to attempt to support his credibility by asking appellant his reason for the false statement. The defense having offered a reason for the lie, the prosecution was then entitled to challenge that explanation. Appellant contends that the prosecution was attempting to impeach on a collateral matter, however, it was the defense that raised the subject of the false statement and explanation and the defense cannot complain that the prosecution pursued the subject on cross-examination.

Appellant objects to the trial court's order permitting prosecutorial discovery of statements J. E. had made to the defense investigator. J. E. testified that she did not recall what she had told the investigator. The court ruled that the statement was discoverable to refresh J. E.'s recollection. It is...