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


Cr. 3356

Decided: August 13, 1940

Franklin B. MacCarthy and Henry F. Poyet, both of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for respondent.

Defendant was charged by information with the offense of rape. In count 1 of the information the offense was alleged to have been accomplished by force and violence (Pen.Code, sec. 261, subd. 3), while in count 2, “being a different statement of the same offense”, defendant was accused of “statutory” rape, in that he committed an act of sexual intercourse with a female under the age of 18 years. Pen.Code, sec. 261, subd. 1. It was also charged that he had theretofore been convicted of a felony and served a term of imprisonment therefor. Trial was had before the court sitting without a jury, a jury having been expressly waived, and at the conclusion of the trial the court announced: “Defendant adjudged guilty as to Count 1; guilty as to Count 2.” The court also found the charge of a prior conviction to be true. The record reveals that thereupon two judgments were pronounced, the first reciting that the defendant had been found guilty of rape as charged in count 1 of the information; the second reciting that he had been found guilty of rape as charged in count 2 of the information; and by each judgment defendant was sentenced to imprisonment in the state prison at Folsom “for the term prescribed by law”, the sentences to run concurrently. From “the judgment and sentences of the court” this appeal is prosecuted.

Appellant first contends that the evidence is insufficient to support the decision finding the defendant guilty of rape. This contention is without merit.

Appellant next insists that the decision and judgment is contrary to law, in that the court erred in finding the defendant guilty of two separate and distinct offenses of rape when the assault consisted of a single act of sexual intercourse. As to this last-mentioned contention appellant must be sustained. By section 261 of the Penal Code rape is defined as “an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances”. Then follows in six subdivisions an enumeration of the circumstances under which the offense of rape may be committed.

The true question raised on this appeal is whether section 261 of the Penal Code creates one offense or six. If six offenses are created, then respondent's contention must be upheld; if but one offense is created, then appellant's position must be sustained. Reference to the information at once suggests that the district attorney did not intend to charge two separate and distinct offenses, but sought by count 2 to allege “a different statement of the same offense as set forth in Count 1”. In other words, the pleader sought to charge but one offense—viz., one rape, committed on the prosecutrix on January 21, 1940. The very nature of the allegations in the two counts shows this very clearly. The only difference between the allegations of the two counts is that force, violence and resistance are alleged in one, without an allegation as to age, while in the other appears the allegation as to age without any allegations as to force, violence or resistance. The allegations of both counts show the offense of rape, committed on the same person on the same day, and indicate that the district attorney was simply setting forth the same transaction in different ways so as to bring the case within either subdivision 1 or subdivision 3 of section 261 of the Penal Code, as the evidence on the trial might show it to have been. It is well settled that section 261 creates but one offense. See People v. Jailles, 146 Cal. 301, 304, 79 P. 965. Also, see, People v. Snyder, 75 Cal. 323, 17 P. 208, and People v. Vann, 129 Cal. 118, 61 P. 776. The decisions relied upon by respondent are not in point. The trial court was without authority in the circumstances to find defendant guilty of two offenses, and hence without authority to enter two judgments.

While the judgments must be reversed, we have given consideration to the question of whether a new trial must be had, and have concluded that in remanding the cause we must direct a retrial. Our conclusion in this regard is influenced by a consideration of the provisions of section 264 of the Penal Code, so far as it provides alternative punishments of either penitentiary or county jail sentences in cases of rape committed in violation of subdivision 1 of section 261 of the Penal Code. It is to be noted that rape is punishable by imprisonment in the state prison not more than fifty years, except that when the offense is “under subdivision one of section two hundred sixty-one of the Penal Code, in which case the punishment shall be either by imprisonment in the county jail for not more than one year or in the state prison for not more than fifty years”; and further, that “in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison”. Manifestly, if the trial had been by jury and the jury had been permitted to return two verdicts, and on such verdicts two judgments had been pronounced, a reversal of such judgments with directions for a retrial would be inevitable. There appears to be no reason for distinguishing between a trial by the court and a trial by jury in this regard. In remanding the action it cannot be presumed by this court that the same trial judge who tried the action in the first instance will be available to remedy the error by the simple process of correcting the judgment. In that connection, we are not to be understood as suggesting that such a procedure would be valid even if practical, for it must be remembered that when a jury is waived the trial is by the court, and the personnel therefore cannot be taken into account.

For the guidance of the trial court upon a retrial, we have considered appellant's final contention that the prosecution failed to adequately or legally prove the prior conviction charged against him. We find no merit in such claim. A police officer who qualified as an expert on fingerprints testified that appellant's fingerprints taken by him were the same as fingerprints appearing on part of people's exhibit 2, the latter of which was a record certified to by the official custodian thereof, and which showed that appellant, at the time alleged in the information, was sentenced to imprisonment in the state prison of Illinois for a term not less than one nor more than twenty years; that such sentence was based upon a plea of guilty to a felony charge of automobile larceny as contained in an indictment. Further, upon the issue of the alleged prior conviction appellant himself testified as follows:

“Q. Did you get into some difficulty back in Ohio? A. Illinois, yes, sir.

“Q. Do you know what the charge was? A. Yes, sir, larceny of an automobile.

“Q. How old were you at the time? A. 17.

“Q. Were you sent to the State Penitentiary? A. I was first sentenced to the State Penitentiary, to be transferred to Pontiac, Illinois, which at the time was the reformatory.”

Larceny of an automobile constitutes grand theft, a felony in this state. Pen.Code, sec. 487. The allegation of appellant's prior conviction was properly charged in the information. Pen.Code, sec. 969. The records in connection with such prior conviction were properly received in evidence. (Pen.Code, sec. 969b), and with appellant's admission of such prior conviction while testifying at his trial provided abundant proof to sustain the court's finding that the charge of such prior conviction was true. Appellant's commitment to the state prison at Folsom was authorized by the provisions of section 1202a of the Penal Code, which provides for such place of imprisonment even though the previously convicted person served no time in a penal institution as a result of such prior conviction.

It is unnecessary to give consideration to appellant's challenge of the constitutionality of section 668 of the Penal Code, so far as such section refers to section 644 of the same code, for the reason that section 644 is not involved in the case before us. That section provides for increased punishment where a defendant has suffered conviction of two prior felonies. In the instant case appellant was charged only with one previous conviction.

The attempted appeal from the sentences is dismissed.

The judgments are reversed and the cause remanded for a new trial.