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District Court of Appeal, Fourth District, California.


Cr. 953.

Decided: April 27, 1954

William B. Esterman, Hollywood, for appellant. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Dep. Atty. Gen., for respondent.

The defendant was charged in Count I of an information with assault to commit rape upon Velma Gonzales on November 17, 1952. In Counts II and III he was charged with the rape of Agapita Gallegas, and with a violation of section 286 of the Penal Code committed upon her, both on October 27, 1952. He pleaded not guilty to each count. Upon his motion for a severance the court ordered separate trials with respect to each victim, and ordered that the charges in Count II and III be tried first. A jury found him guilty on both counts and he was sentenced to prison on each, the sentences to run concurrently. He has appealed from an order denying his motion for a new trial.

About 5:35 p. m. on October 27, Mrs. Gallegas left a store in downtown San Bernardino, where she was employed, and started to walk toward her home. As she was going along a street near a junk yard someone grabbed her from behind, put his hand on her mouth when she started to scream, and threatened to kill her. Her assailant choked her so she could not scream, and pushed and dragged her into a secluded spot behind some trees and shrubs. Her testimony as to what there occurred fully supports the charges made in Counts II and III.

She then went to her home and told her husband what had happened. Her husband went to the scene of the attack and Mrs. Gallegas and a relative went there in a car. Police officers, who were at the scene, questioned her and then sent her to a hospital where she was examined by a doctor. So far as material here the doctor's report reads:

‘Head: Straw in hair back of head.

‘Neck: Negative * * *.

‘Skin: 3 millimeter abrasion lateral right knee, appearing recent in origin with recently coagulated blood on surface. * * * No blood or tears. No evidence of trauma. * * * No sperm seen in multiple field * * *. No evidence of intromission or recent trauma.’

About a week prior to November 18, 1952, a man was shown to Mrs. Gallegas by the police and she told them he was not the person who had attacked her. On November 18, she was again taken to the police station where she identified the defendant as her assailant. She again identified him at the trial as the man who had attacked her, and whom she had seen at the police station on November 18.

After the defendant's arrest on November 18, a police officer had a conversation with him in which the officer read the ‘offense report’ to him, line by line, and asked him if it was true. The officer made a note of his answers on the offense report. On the morning of November 19, a parole officer for the Youth Authority had a conversation with the defendant in which he admitted in detail facts showing that he committed these offenses. On the afternoon of November 19, he was taken to the office of a deputy district attorney and, in the presence of the police officer who had first questioned him, the district attorney asked him many questions. These questions and the defendant's answers were taken down in shorthand by a court reporter who was present, and were later written up by him. These questions covered all details of the story told by the woman as to what had occurred on this occasion and the defendant's answers, being a full admission of all of these facts, fully corroborated the victim's story and covered every element involved in the commission of both of these offenses. He also admitted that these statements had been freely and voluntarily made by him, and that no force or violence or promise of immunity had been used or made either when he was questioned at the police department or on this occasion.

At the trial the defendant denied that he had been present at the scene of the attack on October 27, or that he had done any of the things testified to by Mrs. Gallegas; denied that he had discussed the Gallegas case with the officer on the evening of November 18; denied that he had admitted anything to the officer for the Youth Authority; and denied that he had been in the district attorney's office in the presence of a court reporter on November 19. He testified that he was in the district attorney's office with a reporter present on November 20, at which time the deputy district attorney would read three or four sentences and then ask him if he had done it, but that he had made no replies to the questions except once when he was asked his name, and twice when he said he had not committed the crime on October 27. The defendant attempted to establish an alibi for the time in question, produced character witnesses, and claimed that the complaining witness had seen him so many times on the bus and in the store where she worked that she had identified him because he was familiar to her.

The appellant's first contention is that the court committed prejudicial error in denying his motion to dismiss the jury panel, from which this jury was selected. He contends that he was denied his constitutional right to a trial by an impartial jury because the method used in selecting this panel resulted in the systematic inclusion thereon of limited classes of persons who did not represent a cross-section of the community, and discriminated against the class to which he belonged, i. e., hourly workers. This panel consisted of 525 people, all of whom came from a number of townships in the southwest corner of the county. It appears that persons from beyond the mountains had not been included because of previous difficulties in securing their attendance. In a sampling taken of a part of this panel, 58 were business men, 5 hourly workers, 68 salary workers, 209 housewives, 14 ranchers, 39 retired businessmen, and 18 retired workers, and 176 of them were from the city of San Bernardino, where the appellant lived. On an age basis, 34% were under 40 years old and 67% were under 50.

The jury commissioner testified that each year questionnaires were sent to persons whose names were on the membership lists of various service clubs, women's clubs and the Chamber of Commerce; that any person who volunteered was given a questionnaire and placed on the panel if they qualified; that questionnaires were sent to persons recommended by individuals and placed on the panel if qualified; that persons who had previously served as jurors were placed on the panel if they so desired; that an effort was made to get as many business people on the panel as possible; that the persons to whom questionnaires were sent included persons of Mexican and Negro descent; and that no one was excluded from the list because he was an hourly wage earner. No contention was, or is, made that any class of persons was intentionally excluded, the contention being that because of the limited classes which were included the panel did not represent a cross-section of the community, and the number of hourly workers thereon was not proportionate to the number of such workers in the community. If there was any lack of proportionate representation there was no evidence of any purpose to discriminate against any group of persons, and the uncontradicted evidence shows that no person was excluded because of his economic status or age. No prejudicial error appears in this connection. People v. Hess, 104 Cal.App.2d 642, 234 P.2d 65; People v. Hartwell, 39 Cal.App. 24, 177 P. 885; Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043. The persons on this panel represented a cross-section of the community in which the appellant lived, and we see neither violation of law nor any possible prejudice in the fact that no persons from outlying sections of the county were included.

It is next contended that the deputy district attorney committed prejudicial misconduct ‘in placing indirectly before the jury inadmissible evidence with respect to a nonexistent reputation of the defendant for homosexuality’. It is argued that there was no factual foundation for one question asked; and that it was asked in bad faith and with knowledge that the matter was inadmissible. After a character witness had testified that she knew the appellant's reputation in the community for chastity, virtue and morality, and that it was good, she was asked on cross-examination ‘Had you heard that reports had been given to the San Bernardino police department that Joe White carried on homosexual activities in Meadowbrook Park?’ An objection was overruled, and a ruling was reserved on a motion to strike the question. The witness first answered that she had heard of it, but after the meaning of ‘homosexual’ was explained to her she said that she had not heard of it. Later, a hearing was had, outside the presence of the jury, with respect to the good faith of the deputy district attorney in asking this question. The facts produced at that hearing support the court's finding that the question was asked in good faith, and its refusal to strike the question. In this connection it is also contended that the court erred in failing to give, of his own motion, an instruction to the effect that questions concerning such reports are not proof of the facts therein contained and are not to be considered as evidence. Not only was such instruction not asked for, People v. Stevens, 5 Cal.2d 92, 53 P.2d 133, but a negative answer was given by the witness. Under the circumstances it could not reasonably be held that any possible prejudice resulted which could have affected the verdict.

It is next contended that the court erred in receiving testimony from the officer for the Youth Authority because no proper foundation was laid, and because it was improper rebuttal evidence. It is argued that this testimony was received on the theory of impeachment; that the witness responded to typed questions and answers read to him by the prosecutor and purporting to be the substance of a conversation with the defendant; that while this conversation took place on November 19, the memorandum used by the prosecutor was written by the witness about five months later and then typed by his secretary; that there was a failure to lay a foundation as required by section 2047 of the Code of Civil Procedure; and that this testimony was withheld from the prosecution's case in chief and improperly brought in as rebuttal for the purpose of emphasis.

The appellant testified that he was employed at Norton Air Base during October, 1952; that on the date in question he returned home at 4:30 p. m. and remained there until about 6:30 p. m.; that he had never assaulted Mrs. Gallegas or had any contact with her at the time in question; and that he had talked to the officer for the Youth Authority on the morning of November 19, telling him that he had been at home on October 27. On cross-examination he testified that on the morning of November 19, he did not answer that officer's questions except that he told him that he had been at home. On further cross-examination he was asked if he had not, on the morning of November 19, been asked certain questions by this officer and given certain answers to those questions. He denied that he had done so, and the officer was then called and testified that on that occasion he had asked those questions of the defendant and received those replies. These questions and answers covered essentially the same ground as those asked and answered in the presence of the court reporter, and covered admissions to most of the material facts in this case. Not only was this testimony proper rebuttal but no lack of foundation appears. While the district attorney used a memorandum, prepared by this officer, in asking whether such questions were asked and such answers given, the witness testified from his own recollection. He testified that it had not been necessary to memorize the memorandum because he remembers the conversation. No reversible error appears in this connection.

It is next contended that the court erred in limiting the cross-examination of the prosecutrix. During her cross-examination she testified that she ‘punched out’ at 5:30 on October 27 and left the store about 5:35. She was shown her time card which showed she had punched out at 4:37 on that day, and was asked where she had been between 4:37 and 5:30. She testified that she had been at the store and had kept on working after she punched out, as she sometimes did. Counsel then asked her ‘And the reason you said to me that you worked an hour after you punched out was that you realized that you had to account for that hour some way, isn't that right?’ The court then said: ‘The objection to that will be sustained. The question was asked how she accounted for the difference between the time she punched out and 5:35, and she gave you her answer.’ Counsel then asked ‘Have I not the right to inquire’, and the court replied ‘You have not the right to argue with the witness.’ The cross-examination then proceeded (over five pages of the transcript) on this same matter and she was allowed to answer at least three questions as to why she had testified that she had punched out at 5:35. No prejudicial limitation of the cross-examination of this witness appears.

It is next contended that the court erred in instructing the jury (1) on the presumption of innocence; (2) on circumstantial evidence; and (3) ‘in unexplained references to Counts II and III.’ With respect to the presumption of innocence the court gave the exact language of section 1096 of the Penal Code and added the following:

‘If, when considering all the evidence, the jury are satisfied to a moral certainty and beyond a reasonable doubt that the defendant is guilty, then the presumption of innocence no longer prevails and you should find the defendant guilty.’

It is argued that the words thus added suggested a distinction between the objective evidence and the presumption of innocence and took away appellant's right to have all of the evidence, including the presumption, considered until a verdict was reached. These added words sufficiently told the jury that the presumption should be considered as a part of the evidence and that it remained until their deliberations upon the evidence as a whole convinced the jurors of his guilt. People v. Arlington, 131 Cal. 231, 63 P. 347.

With respect to circumstantial evidence, the court gave these instructions:

‘You are not permitted on circumstantial evidence alone, to find the defendant guilty of any crime charged against him unless the proved circumstances not only are consistent with the hypothesis that the defendant is guilty of the crime, but are irreconcilable with any rational conclusion. (Emphasis ours.)

‘When the case which has been made out by the People against a defendant rests entirely or chiefly on circumstantial evidence, and in any case before the jury may find a defendant guilty basing its finding solely on such evidence, each fact which is essential to complete a chain of circumstances that will establish the defendant's guilt must be proved beyond a reasonable doubt.’

It is argued that the omission of the word ‘other’ before the word ‘rational’ rendered the instructions ambiguous and meaningless, with the effect of depriving the appellant of his right to a jury trial. The first part of this instruction could not have misled the jury and the second part was more favorable to the appellant than otherwise, in requiring that each fact in a chain of circumstances be proved beyond a reasonable doubt. Moreover, the People's case rested chiefly on direct evidence and was merely corroborated by some circumstantial evidence. No prejudicial error appears.

The only reference to Counts II and III were in the instructions as to the form of the verdicts, informing the jury that it might bring in verdicts of either guilty or not guilty ‘as charged’ in these counts of the information. It is argued that this reference to these counts could not have failed to arouse the curiosity, and even the prejudice, of the jury as to the existence and nature of another unmentioned count. Count I had been severed for the purpose of trial, at appellant's request, and the court merely instructed the jury with respect to the form of possible verdicts on the remaining counts. There is nothing to indicate any possible prejudice.

It is next contended that the testimony of the prosecutrix was inherently improbable. It is argued that she testified that she was choked to keep her from screaming; that she was dragged some distance and her stockings were torn; that after the attack her assailant helped her pick up the contents of her purse; that she kissed the assailant at his request; that she did not see a doctor after the attack; that she went to work the next day; and that she did not mention this attack to two officers who came to see her the next day about another matter. It is argued that it is unbelievable that her assailant would help her pick up things, thus giving her a better opportunity to identify him, or that she would fail to consult a doctor; that the picture taken of her does not show any tear in her stockings; and that the medical report refers to no sign of choking, and shows that she was not hurt. The complaining witness did see a doctor shortly after the attack and the doctor's report contained some matters which tend to support her story. The picture, taken from the rear, did not show the front of her stockings. She testified that she kissed her assailant because he refused to let her go until she did so. While all of the matters relied on could be argued to the jury, they are far from sufficient to justify a reversal on the ground that the testimony of this witness was so inherently improbable and unbelievable that it could not be accepted by the jury. People v. Huston, 21 Cal.2d 690, 134 P.2d 758; People v. Fremont, 47 Cla.App.2d 341, 117 P.2d 891.

Finally, it is contended that a review of the evidence, with the cumulative effect of these errors, must lead to the conclusion that there was a miscarriage of justice. It is argued that the appellant was first identified by the prosecutrix in a half-lighted room with a flashlight thrown upon him; that he must have been familiar to her since he and his mother testified that they had frequently seen her at the store and on a bus; that the appellant's admissions were obtained by asking leading questions; that the transcript of the November 19 statement was not written up by the court reporter until in January; that some of the pages in that reporter's loose-leaf notebook had been moved out of position; that someone had changed that notebook to indicate that this statement was taken at 3:20 p. m., and not at 3:30 p. m., that the doctor's report was ignored by the prosecution until it was brought in by the appellant; that there was a conflict between two officers as to when they first talked to the appellant; that there are ‘strange overtones' in connection with the admissions made by the appellant which justify the greatest suspicion; and that a comparison of the appellant's answers in the November 19 statement with his testimony at the trial shows that in replying to questions on the first occasion he used the word ‘Sir’ 82% of the time, while in a much larger number of replies at the trial he did not use that word at all. These arguments and such conflicts as appear in the evidence were matters for the jury, and we find nothing therein which tends to indicate any miscarriage of justice or any denial of the constitutional rights of the appellant.

The order appealed from is affirmed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.

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