People v. Willis

• Decision Date: 03 December 1954
• Docket Number: Cr. 3041
• Citation: 276 P.2d 853,129 Cal.App.2d 330
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John WILLIS, Defendant and Appellant.

Page 853

276 P.2d 853

129 Cal.App.2d 330

The PEOPLE of the State of California, Plaintiff and Respondent, v. John WILLIS, Defendant and Appellant.

Cr. 3041.

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

Dec. 3, 1954.

Manuel L. Furtado, San Francisco, Newman & Marsh, Hayward, Robert W. Phillips, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., of the State of Cal., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendant was convicted by a jury of the following offenses committed on one K. on November 25, 1953: (1) violation of section 288a, Penal Code (oral copulation); (2) violation of section 286, Penal Code (sodomy); (3) violation of section 245, Penal Code (assault with a deadly weapon); and of one offense committed on one E. on November 27, 1953, violation of section 288a, Penal Code (oral copulation). The information charged and defendant admitted two priors, murder and burglary. Defendant appeals from the judgment of conviction and the order denying a new trial.

Questions Presented.

1. Were K. and E. accomplices so that their testimony had to be corroborated?

2. Was the plaintiff's evidence inherently improbable or inconsistent?

3. Effect of failure to give cautionary instruction on court's own motion.

4. Alleged misconduct of district attorney.

Evidence.

Only such portions of the revolting details as are necessary to the decision will be given. K., a white sailor on liberty from Treasure Island, testified that about 9:30 p. m. on the Embarcadero he was accosted by defendant, a Negro whom he had never seen before. Defendant asked him if he wanted a girl. K. declined. Thereupon defendant, giving his name as Otto Johnson and displaying what appeared to be a bottle of gin, invited K. to have a drink. K. accepted. Together they entered the Ferry Hotel and went up to the second floor. K. went to the lavatory, defendant following him. Thereafter defendant prevented K. from leaving the lavatory, struck him in the face, pinned him against the wall, placed a small pen knife against his throat and threatened to cut his throat if he failed to comply with his wishes or cried out. Then defendant committed three or four acts of sodomy on K., and two acts of oral copulation, plus masturbation. K. finally turned and struck defendant in the testicles, whereupon defendant stabbed K. in the chest, inflicting a small cut. After K. had dressed, defendant having undressed him in the approximately one and a half hours they were in the lavatory, defendant told K. to get a taxi. Instead, K. got the police. By the time they reached the hotel defendant had disappeared and could not be found in the neighborhood.

Defendant's approach to E., a white soldier, was quite similar. The latter was on the Embarcadero. Defendant, whom he had never seen before, accosted him, asking if he wanted a girl. E. appeared willing. Defendant led him to the Ferry Hotel and when they reached the second floor stated that he must determine before getting him a girl that E. was not diseased, and pushed him into the ladies' rest room. E. wanted to get out but defendant locked the door, and being larger than E., pressed him against the wall. E. was scared and did not consent. Then an act of oral copulation took place. As they left the rest room they met one Betty Alexander to whom E. gave $11. They then went into a room where there was another man. Betty started to remove E.'s clothes. E. had two drinks of whiskey which made him vomit. Betty and the other man left. E. was then lying on the bed. Defendant pressed a nail file or knife against E.'s neck and threatened to cut his throat if he protested. Someone had turned off the light. Defendant attempted sodomy and accomplished oral copulation. Defendant left the room. Several minutes later, E. went into an adjoining room where he found several children, one man and two women, one of whom was Betty, had a cigarette with them, and left the hotel. Immediately he notified the police.

Both K. and E. subsequently in separate police line-ups of five Negroes identified defendant. Betty Alexander told the police that she met defendant and E. coming down the hall and that defendant told her 'You turn a trick with this soldier, and make a little money.' Her husband told the officers that he came out in the hall and saw E. and defendant talking to Betty. They all went in a room together. Then Betty and her husband left, leaving defendant and E. in the room. After the arrest defendant told Inspector Kopfer 'I had both of the sailors up there at one time,' that defendant had seen E. and K. together. Actually neither of these knew the other until after defendant's arrest. Defendant told his parole officer (he was on parole at the time of these offenses) that both K. and E. had propositioned him to engage in perverted sexual practices but he declined.

Defendant testified that on the night of the K. offenses, he was in the 144 Club when K., whom he did not know, walked up and asked him to have a drink. Defendant refused. In a few moments another stranger to defendant bought defendant a drink. This caused K. to become offended. Defendant, seeing that K. was drunk, left the premises and did not see K. again. Mrs. Helen Gaylord, owner of the 144 Club, corroborated defendant in this incident. K. denied being in the 144 Club. Defendant denied being in the Ferry Hotel with K.

As to the night of the E. incident, defendant contends he met E. in the Y.M.C.A. where they had an ordinary conversation. Defendant then left to keep an engagement. Later he saw E. in front of the Ferry Hotel. E. asked him if there were girls in the hotel and followed defendant in. They were stopped by Betty Alexander who asked if they wanted girls. Defendant replied that E. did but that defendant wanted to see a friend of his named Leon Duval. Defendant then went down the hall to a room formerly occupied by Duval. Apparently not finding him in, defendant returned up the hall, and met Alexander. E., Betty, Alexander and he went into a room. Defendant had a drink with E. and Betty. E. became sick and Betty said she would put him to bed. Defendant then left and went to Irwin's Restaurant where he met an ex-convict friend named Ray Manuel. Manuel testified he saw defendant in the restaurant between 9 and 10 p. m. and that the two of them remained in the restaurant until approximately 11:30. Defendant denied being in the room alone with E.

1. Accomplices.

Defendant contends that the evidence shows K. and E. to be willing accomplices of defendant and hence that their testimony had to be corroborated under the rule of People v. Robbins, 171 Cal. 466, 154 P. 317. However, he overlooks the testimony of both men that they were in great fear; that defendant held either a knife or nail file to their throats and threatened to kill them if they made outcry. K. in fact, showed the police officers evidence of being stabbed. Defendant testified that he never carried a knife and that he only carried a small nail clipper. Therefore, says defendant, the victims' stories could not possibly be true. (He claimed to have had this clipper on his person when arrested. But the evidence of the police officers was to the contrary.) This conflict was one for the jury to resolve. See People v. Negra, 208 Cal. 64, 69, 280 P. 354. 'Where a violation of said section 288a is committed without the consent of the prosecuting witness, it is not necessary that the testimony of such witness be corroborated. People v. Battilana, 52 Cal.App.2d 685, 695, 126 P.2d 923. A person who participates in an act in violation of said section solely because such person has been threatened with, and is in fear of, great bodily harm is not an accomplice.' People v. Peterman, 103 Cal.App.2d 322, 325, 229 P.2d 444, 446. Section 1111, Penal Code, defines an accomplice as one who may be prosecuted for the identical offense with which defendant is charged. Section 26, subdivision 8, Penal Code, provides that a person is not capable of committing a crime who commits it under threats or menaces sufficient to show that he had reasonable cause to and did believe his life would be endangered if he refused. There is ample evidence here that neither victim willingly consented to defendant's acts and that each reasonably feared his life was in danger if he resisted defendant.

2. Alleged Improbability of Evidence (K. case).

1. The K. offenses took place in an open toilet of a public hotel between the hours of 9:45 and 11:15 p. m. and yet no one saw or heard them. While there was no door into the toilet room, the offenses took place in cubicles not visible from the hall. Taking into consideration that the hotel is located on the Embarcadero and had prostitutes for tenants, it is not improbable that no one witnessed the crime, nor if someone did that it would not be reported.

2. Absence of evidence of seminal fluid on the floor. One of the police officers who went to the lavatory that evening testified that because of the 'sloppy' condition of the floor, water, paper, cigarette butts and slop covering it, it would have been impossible to tell whether there was semen there, although they did not look for it. Thus, there was no evidence either of its absence or presence.

3. Other claims of improbability and inconsistencies in the testimony in the K. case were that it is improbable that four acts of sodomy could have occurred without K. requiring medical attention; that it is improbable that K. would have punched defendant, who was a professional boxer, in the testicles and in turn have been stabbed by defendant; that although everyone concerned accepted the wound to be a knife wound it actually was inflicted by a fingernail clipper; that K. testified defendant stripped him of his clothes but kept his own overcoat on at all times; the K. could not recall the color of the coat, nor whether it was plain or checked;...