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

PEOPLE of State of California, Plaintiff and Respondent, v. Leon Daniel COLLINS, John Willie Scott and Obie Brown, Defendants and Appellants.*

Cr. 6691, 6692.

Decided: November 05, 1959

Umann & Marks, Los Angeles, for appellants. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Robert M. Sweet, Deputy Atty. Gen., for respondents.

Defendants Collins, Scott and Brown were jointly accused by information of the crime of rape (involving the use of force or violence) in violation of subdivision 3, Section 261, Penal Code, in case numbered 6691. The information also charged Brown with a prior felony conviction. Following a nonjury trial, all three defendants were adjudged guilty of rape (upon a female under 18) as defined is subdivision 1 of Section 261, from which judgments of conviction they have appealed. Defendant Brown has also appealed from a judgment revoking probation in case numbered 6692, in connection with his prior conviction of a felony which was found to be true. This appeal was taken presumably to preserve any right to reinstatement of probation in the prior case should the judgment in the instant matter (No. 6691) be reversed. People v. Robinson, 43 Cal.2d 143, 271 P.2d 872.

Defendants concede the sufficiency of the evidence to support the finding that ‘an act of sexual intercourse (was) accomplished with a female not the wife of the perpetrator’ (Penal Code, § 261); they further admit that the female involved was under 18 years of age. Reversal is sought on the following alternative grounds: (1) the trial court erroneously adjudged the defendants guilty of a crime (rape upon a female under 18 under subdivision 1) not charged in the information and not necessarily included in that alleged (rape by force or violence under subdivision 3), or (2) if a violation of subdivision 1 is in fact a necessarily included offense, misdemeanors only were committed and the commitments to state's prison and (in the case of Scott) to the Youth Authority, were illegal and void.

Immediately following its definition of the crime of rape, Section 261 proceeds to describe six types of illicit intercourse of which two are here pertinent: (1) ‘Where the female is under the age of eighteen years' (subd. 1), and (2) ‘Where she resists, but her resistance is overcome by force or violence’ (subd. 3). Since its enactment it has been generally agreed that Section 261 did not create six different types of crime (People v. Snyder, 75 Cal. 323, 324–325, 17 P. 208; People v. Mummert, 57 Cal.App.2d 849, 857, 135 P.2d 665). In People v. Craig, 17 Cal.2d 453, 455, 110 P.2d 403, 404, the court declared in this connection: ‘Under this section (Section 261), but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the foregoing subdivisions. These subdivisions merely define the circumstances under which the act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act. This conclusion finds support in section 263 of the Penal Code which provides that: ‘The essential guilt of rape consists in the outrage to the person and the feelings of the female.’ The victim was not doubly outraged, once because she was forcibly attacked and once because she was under 18 years of age. There was but a single outrage and offense (Citations)' Hence, regardless of the subsection referred to in the information, it is held that rape has been proved if the evidence brought the case within any of the subsections of Section 261 (People v. Blankenship, 103 Cal.App.2d 60, 66, 228 P.2d 835; People v. Cassandras, 83 Cal.App.2d 272, 276, 188 P.2d 546).

Notwithstanding the force of the foregoing authorities, appellants assert that the present case is controlled by the decisions in the case of In re Hess, 45 Cal.2d 171, 288 P.2d 5, and People v. Greer, 30 Cal.2d 589, 184 P.2d 512. The former declares that the offense of contributing to the delinquency of a minor is not included within a specific charge of forcible rape; while the latter holds that statutory rape necessarily includes the crime of contributing; therefore, appellants concluded, forcible rape does not include statutory rape. This rather ingenuous argument would be more convincing if closer examination were not made of the two decisions, particularly In re Hess. While the dissenting opinion therein implies, if it does not openly declare, that the majority decision is contrary to earlier holdings that Section 261 proscribes but one offense, it would seem that the Hess case turned principally on the denial of due process reflected by the proceedings: ‘The information charging forcible rape in the present case did not advise petitioner that he must be prepared to controvert evidence that his alleged victim was under the age of 21 years and to defend a charge of having committed an act that would tend ‘to cause or encourage any person under the age of 21 years' to become a delinquent’ (45 Cal.2d at page 175, 288 P.2d at page 7). This view is borne out by later declarations in People v. Marshall, 48 Cal.2d 394, 309 P.2d 456. There, as here, the precise controversy presented was whether the yardstick or standard for measuring offenses ‘necessarily included’ within the meaning of Section 1159, Penal Code, was the specific language of the accusatory pleading or the language of the statute. After reference to the Hess case, it was held that a lesser offense is ‘necessarily included’ if it is within the offense specifically charged in the accusatory pleading even though its elements are not necessarily within those of the statutory definition of the crime. The court declared (48 Cal.2d at page 405, 309 P.2d at page 462): ‘Since the decisions as to included offenses, so far as they relate to choice of a standard to measure what offenses are ‘necessarily included’ within the meaning of section 1159 of the Penal Code, have not expressly considered or decided the question of selection as between the language of the accusatory pleading and the statutory definition, we base our choice of the specific language of the * * * pleading upon considerations of fairness to both parties.'

The purpose of an accusatory pleading is to give the accused reasonable notice of the charge which he must meet at the trial (People v. Roberts, 40 Cal.2d 483, 486, 254 P.2d 501); however, notice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate or the grand jury (People v. Roberts, supra, 40 Cal.2d 486, 254 P.2d 503). As required by Section 870 of the Penal Code, long before the trial each of these appellants was furnished a transcript of the proceedings upon the preliminary hearing; such transcript, made a part of the record herein, clearly indicates that appellants were put on notice of the minority of the female in question; furthermore, at the close of the hearing before the magistrate, counsel for one of the appellants even expressed the view that the evidence indicated ‘statutory rape’ rather than rape by force and violence. Under such circumstances, it may not validly be claimed that there was any departure from the constitutional requirement that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial (In re Hess, supra, 45 Cal.2d 171, 175, 288 P.2d 5).

Appellant' alternative contention is based on the assumption that it was within the power of the trial court to find them guilty of statutory rape and that the court having done so erroneously sentenced them to the state prison and to the Youth Authority. In that connection appellants point out that the three typewritten judgments in the clerk's transcript refer to the crime found to have been committed as ‘a lesser offense than that charged in the information but necessarily included’ therein, although the reporter's transcript discloses that the trial court made no such reference to the crime as a ‘lesser’ or ‘necessarily included’ offense when it found appellants guilty. The discrepancy, however, is unimportant since a violation of subdivision 1 of Section 261 is punishable either by imprisonment in the state prison or the county jail for the term therein prescribed (Section 264, Penal Code); and this was a nonjury trial, after which the court properly exercised its discretion in sentencing appellants under felony convictions.

As to case No. 6692, even though the conviction of appellant Brown was not then final pending appeal, it was sufficient to warrant the trial court's conclusion that he was engaged in criminal practices in violation of the terms of his probation, which was thereupon revoked (People v. Robinson, 43 Cal.2d 143, 146, 271 P.2d 872).

For the foregoing reasons, the judgments in No. 6691 and the judgment in No. 6692, are, and each is, affirmed.

LILLIE, Justice.

PARKER WOOD, P. J., and SHEA, J. pro tem., concur.