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

The PEOPLE of the State of California, Plainiff and Respondent, v. William L. BAIN, Defendant and Appellant.

Cr. 7999.

Decided: October 26, 1970

Sheldon Portman, Public Defender, Terry A. Green, Deputy Public Defender, San Jose, for defendant and appellant. Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Don Jacobson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

William L. Bain appeals from a judgment sentencing him to concurrent terms in state prison after a jury found him guilty of forcible rape (Pen.Code, § 261, subd. 3), false imprisonment (Pen.Code, § 236)—an offense included within a kidnapping (Pen.Code, § 207) count in the information—and oral copulation (Pen.Code, § 288a). The jury found that appellant was armed with a deadly weapon in connection with all the foregoing offenses. There was also a guilty verdict and concurrent sentence as to a charge of possessing a concealed dirk or dagger (Pen.Code, § 12020).

The prosecution arose out of an incident which began when the complaining witness, a young married woman, boarded a bus in San Francisco late at night to go to Moffett Naval Air Station, Mountain View, to visit relatives. Appellant followed her onto the bus, sat by her, and made advances to her during the journey. When she got off the bus, appellant followed her and, exhibiting a weapon and threatening to injure her, forced her to walk behind some buildings nearby. There he forced her to submit to sexual intercourse and oral copulation. A police officer testified that, patrolling the area with his police dog, he discoverd appellant and the victim together and told them to move away from the partly hidden area where the alleged sexual offenses took place. The complaining witness immediately ran to the officer and, weeping, told him she had raped. She warned the officer, ‘Look out, he has a knife.’ The officer testified that he discovered a ‘piercing blade’ knife locked in an open position in appellant's trench coat pocket.

Appellant testified that he effected a ‘pick up’ of the complaining witness, that she consented to sexual intercourse, and that he had told the arresting officer that she was his date. Appellant testified that he carried the weapon for self-protection because of the nature of the neighborhood in which he lived, and claimed, contrary to the officer's testimony, that it was folded in his pocket when he was arrested.

The weapon which the arresting officer found in appellant's possession has an overall length of 11 inches. From the tip of the blade to the hilt or hinge, it measures 4.7 inches. The blade is sharpened (at the point only) on both sides, and is serviceable for stabbing but not for cutting; it can be folded back into the handle. The blade can be locked into an open position; a stiff spring-loaded catch must then be depressed before the blade can be closed. The weapon does not conform to any of the definitions of ‘switch-blade knife’ set forth in Penal Code section 653k.

Appellant contends that the weapon is, as a matter of law, not a dirk or dagger within the meaning of Penal Code section 12020.1 In People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836, 837, the court said: ‘A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death, except what is commonly known as a ‘pocket knife.’ ‘Dirk’ and ‘dager,’ are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. * * * They may consist of any weapon fitted primarily for stabbing.' The knife found to be a dirk or dagger in Ruiz was a bayonet.

In People v. Forrest (1967) 67 Cal.2d 478, 481, 62 Cal.Rptr. 766, 768, 432 P.2d 374, 376, the court said: ‘Although the large blade in the knife involved here is pointed and to a minor extent tapered, the knife folds like a pocketknife, and the blade of the knife when opened does not lock in place. This severely limits its effectiveness as a stabbing weapon, because if the blade should hit a hard substance such as a bone, there is grave danger that the blade would close upon the hand of the wielder. This distinguishes it from a dirk or dagger. It is not designed primarily for stabbing. Therefore, as a matter of law, it is not a dirk or dagger as these terms are used in the statute.’

The blade of the weapon in our case locks into place. When so locked it cannot be closed except by an intentional effort. There was evidence that the weapon was locked open at the time of the offenses. When open it is apparently useless (because it is sharp only at the point) for any purpose other than stabbing. There is no evidence that it had a use other than as a stabbing weapon. The jury's determination that the weapon is a dirk is not incorrect as a matter of law.

Appellant next attacks the determination that he was armed with a deadly weapon, contending that his weapon is not within the meaning of Penal Code setion 3024, subdivision (f), because it has a blade less than 5 inches long. Penal Code section 3024 prescribes a minimum sentence for persons armed with a deadly weapon during the commission of a felony. Subdivision (f) provides: ‘The words ‘deadly weapon’ as used in this section are hereby defined to include any * * * dirk, dagger, [or] any knife having a blade longer than five inches, * * *.' Because the weapon was properly determined to be a dirk or dagger, it is not significant that the length of the blade was less than 5 inches.

Appellant contends that the deputy district attorney, Mr. Beasley, in his arguments improperly vilified defense counsel and asserted a personal belief in the guilt of appellant and in the credibility of the witnesses. Several of the prosecutor's statements were improper; it is necessary to review them in some detail to appraise their possible prejudicial effect.

During his closing argument, the district attorney made the following comment: ‘Was that woman's trip legitimate? You might say to yourself, ‘The defendant's got a good story.’ Did you think he was going to come in here without a good story? He's had how long to prepare since January 25th? And I'm not—I don't want to imply that my colleague here, that he told him what to say, but he has the assistance of a lawyer.' (Emphasis added.)

After appellant's counsel objected to the statement and moved for a mistrial, the following occurred:

‘MR. BEASLEY: Your Honor, I would certainly go along with counsel if he's taking me to the Bar. His job is only to defend this man, not to take part in his story.

‘THE COURT: The ruling of the Court is going to be that Mr. Green has certainly acted properly as an attorney and he's defending his client well. He's not drumming up any stories.

‘MR. BEASLEY: Your Honor, just a moment. The People would like to have a statement here. First of all, I didn't mean—and I'll tell the jury now—what Mr. Green did or did not do; what I said was that did they expect to come in without a story? And I've been a lawyer long enough that people don't hire lawyers just to give them money to make them rich. I'm saying that merely because he had a lawyer—that's what I'm saying. Now if that shoe fits, he can wear it.

‘THE COURT: I am denying the motion for a mistrial, but I'm stating to the jury that, unequivocally, you have conducted yourself properly and ethically at all times, Mr. Green.

‘MR. BEASLEY: Ladies and Gentlemen, if the People thought that Mr. Green had broken a law, I would have him in jail right now, and I would do it. He knows it. Green knows that I didn't pull any tricks. He's right down the street here, and he raises this thing. Every time he starts getting his tail in a bind, he starts screaming.’

The prosecutor's initial comment implied that appellant and defense counsel together had constructed a fictitious defense in the period between appellant's arrest and trial. It appears that the district attorney intended the jury to make that inference; no other possible purpose for the comments is evident. (Cf. People v. Adams (1960) 182 Cal.App.2d 27, 35, 5 Cal.Rptr. 795.) Citing People v. Beivelman (1968) 70 Cal.2d 60, 76–77, 73 Cal.Rptr. 521, 447 P.2d 913, respondent contends that the above comments are within the wide latitude given to the prosecutor to ask the jury to draw any reasonable inference from the evidence. But the only evidence purportedly supporting the prosecutor's implication is that three months went by between the arrest and trial. That circumstance is not enough. The prosecutor may raise any fair inference, but ‘while he may strike hard blows, he is not at liberty to strike foul ones.’ (Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314; People v. Lyons (1956) 47 Cal.2d 311, 318, 303 P.2d 329.) An unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct. (People v. Charlie (1917) 34 Cal.App. 411, 414–415, 167 P. 703 [not prejudicial]; People v. Nelson (1964) 224 Cal.App.2d 238, 254, 36 Cal.Rptr. 385 [not prejudicial]; People v. Nolan (1932) 126 Cal.App. 623, 640, 14 P.2d 880 [prejudicial]; People v. Talle (1952) 111 Cal.App.2d 650, 674–677, 245 P.2d 633 [prejudicial]; see annotation, 99 A.L.R.2d 508, Propriety and Effect of Attack on Opposing Counsel During Trial of a Criminal Case, § 31, pp. 577–579.)

If the trial court promptly sustains counsel's objection and admonishes the district attorney, misconduct can sometimes be cured. (People v. McCracken (1952) 39 Cal.2d 336, 338, 246 P.2d 913, 920 [‘what some people won't do for a fee’]; see Witkin, Cal.Criminal Procedure, Reversible Error, § 751, p. 724; annotation, 99 A.L.R. 2d 508, supra, § 25, p. 562.) On the other hand, an attempted cure may be too weak to be effective (People v. Pantages (1931) 212 Cal. 237, 242, 249, 297 P. 890 [mild rebuke to the district attorney]) or the misconduct may be incurable (People v. Kirkes (1952) 39 Cal.2d 719, 722, 726, 249 P.2d 1 [prosecutor expressed personal knowledge of guilt]). Here the court did not sustain defense counsel's valid objection, but the court's declaration that defense counsel had behaved ‘properly and ethically at all times' may have diminished any effect of the improper statement. Moreover, appellant's trial testimony was not inconsistent with his immediate statement to the officer that the complaining witness was his ‘date.’ Thus the improper charge of recent fabrication had no specially vulnerable target to give it prejudicial effect.

Appellant also argues on appeal that the comments complained of represent an improper reflection by the prosecutor on the credibility of appellant's testimony. While the judge's remarks did not refer to appellant, the general tenor of the exchange indicated to the jury that the judge was not impressed by the implication of appellant's participation, with defense counsel, in a conspiracy to fabricate a defense.

Appellant contends that the following comments by the prosecutor in his rebuttal argument constitute misconduct in that a personal opinion of appellant's guilt was expressed:

‘I understand if you throw a brick at a pack of dogs and you hit one of them, he'll holler. But the thing that bothers me is this: I have tried a lot of cases in three years. I've been up against the Public Defender's Office, a County agency, a number of times. I've only heard race brought out in a case three times and all three times by the Public Defender's Office. Isn't that strange.

‘Now the man is going to enforce law and order, and what does he do? He says the police arrested him because he was black. Now let me tell you something: Do I look white to you? As I look at this man, it seems to me that I am blacker than he is. Now do you think that I didn't read the report before the Complaint was signed? Do you think if I really thought he was innocent that——

‘MR. GREEN: Excuse me, Your Honor. I really hate to interrupt Counsel on closing argument, but I'm sure that Counsel and the Court is aware that this is improper argument when Counsel attempts to interject his personal opinions. His personal opinions are not at all relevant to this; and the purpose of the closing argument, of course, is to merely comment upon the evidence.

‘MR. BEASLEY: Your Honor, I'm the only man in here besides this man over here (indicating) that can tell you what's going on in my mind; and I'm only talking about what the evidence means to me, and Mr. Green raises the issue of race. Let him die with it.

‘MR. GREEN: It sounds to me like——

‘THE COURT: Proceed, Mr. Beasley.

‘MR BEASLEY: Ladies and Gentlemen, what I'm telling you is this: That if I thought the evidence in this case didn't support my theory, do you think I would prosecute this man? I don't have to stay with the D.A.'s office. I know every Negro in this District. Don't you think I could go out on my own and make money? There is one other Black lawyer in this whole town besides me; so do you think I signed a Complaint or signed this thing to stay with the D.A.'s Office?’ (Emphasis added.)

Statements by the prosecutor, not based on legitimate inferences from the evidence, that he would not have conducted the prosecution unless he believed the defendant to be guilty constitute misconduct. (People v. Quigley (1958) 157 Cal.App.2d 223, 227–229, 320 P.2d 936; People v. Kirkes, supra, 39 Cal.2d 719, 249 P.2d 1.) He is not permitted to add to the probative force of the testimony before the jury, the weight of his personal experience (People v. Edgar (1917) 34 Cal.App. 459, 468, 167 P. 891) or the prestige of his official position (People v. Talle, supra, 111 Cal.App.2d 650, 677–678, 245 P.2d 633) or to imply that in his investigation he found additional evidence, not before the jury, which impelled him to initiate the charges (People v. Kirkes, supra, 39 Cal.2d at p. 724, 249 P.2d 1; see annotation, 50 A.L.R.2d 766, Propriety and Effect of Prosecuting Attorney's Argument to Jury Indicating his Belief or Knowledge as to Guilt of Accused, § 3, p. 774; Witkin, Cal.Criminal Procedure, Trial, § 457, p. 457). The foregoing comments were misconduct; the court should have sustained the defense objection.

Respondent contends that the objectionable statements were in direct response to racial overtones which the appellant's counsel had brought into the case. The deputy district attorney is black; yet the public defender indecently suggested that the reason that the People had not asked the victim's brother to testify was that ‘the police say to themselves * * * ‘Well, we've got the nigger rapist and that should do it until trial,’ * * *' The record contains other examples of most indecorous expressions by defense counsel, e. g., ‘Shut up, Mr. Beasley’ in response to an attempt by the prosecutor to make an apparently valid objection.

A prosecutor's misconduct, however, can not be justified on the ground that defense counsel committed a like impropriety. (People v. Kirkes, supra, 39 Cal.2d 719, 725–726, 249 P.2d 1; People v. Talle, supra, 111 Cal.App.2d 650, 677, 245 P.2d 633.) The proper way to correct misconduct by defense counsel is to call it to the attention of the court and have it stopped. (People v. Kirkes, supra, 39 Cal.2d at pp. 725–726, 249 P.2d 1.)

The California Supreme Court has recently held that, although defense counsel had unfortunately initiated an improper discussion of previous verdicts, when the prosecutor's comments went further and implied that the jury should do what previous juries had done, he acted improperly. (People v. Modesto (1967) 66 Cal.2d 695, 716, 59 Cal.Rptr. 124, 427 P.2d 788, cert. den. Modesto v. Nelson, 389 U.S. 1009, 88 S.Ct. 574, 19 L.Ed.2d 608, overruled on other grounds in Maine v. Superior Court (1968) 68 Cal.2d 375, 383, n. 8, 66 Cal.Rptr. 724, 438 P.2d 372.) Similarly, in our case the district attorney's comments go beyond merely meeting the argument that for racial motives the police had failed to make a complete investigation. Though defense counsel's argument was certainly subject to criticism, it does not open the door to all improper argument even though focused around an issue which the defense raised. In weighing the effect of the statement it must be noted that the trial court failed to sustain a defense objecion. (See annotation, 99 A.L.R.2d 508, supra, § 18, p. 550.)

Appellant points to several further comments to which no objection was made at trial. Respondent contends that appellant has waived any objection to these items of claimed misconduct. Appellant's contentions cannot so easily be dismissed; they must be examined to determine whether any further misconduct, even though not objection to, resulted in a miscarriage of justice or was so serious that objection and admonition would not have been a cure. (People v. Berryman (1936) 6 Cal.2d 331, 336–337, 57 P.2d 136.)

The prosecutor, in reference to the conflict between appellant's testimony and that of the arresting officer, said in closing argument:

‘[Defendant] says that the officer is lying, that it was not open. Now let me ask you this: The officer is from Mountain View. This gentleman (indicating) is from San Francisco, so we can only assume that they had never seen each other before in their lives, so why do you think the officer would come in here and tell an open lie on this man?’ (Emphasis added.) Appellant contends that the comment was improper because it represented an expression of personal opinion by the prosecutor concerning the credibility of a witness. But the comment did suggest a legitimate inference from the evidence; the fact that it may also have tended to show how the prosecutor felt on the matter does not establish impropriety. (People v. Jones (1962) 207 Cal.App.2d 415, 425, 24 Cal.Rptr. 601; People v. Houghton (1963) 212 Cal.App.2d 864, 870, 28 Cal.Rptr. 351; see annotation, 50 A.L.R.2d 766, supra, at p. 775.)

Appellant contends that three further comments by the prosecutor in rebuttal argument constituted misconduct in that they vilified defense counsel.

First, the prosecutor, in response to an argument that it was illogical that the alleged victim would leave her three small children alone overnight while she visited relatives, said in his rebuttal:

‘She mentioned that she left three little kids at home by themselves. Now I think the thing that bugged me, I don't mind an attorney arguing this case; but when I happen to know better, it bothers me a little bit.

‘Now did you ever hear any question I asked about me arguing with Counsel who was at home with the kids? That never was a question asked, and it's my fault because I knew and he knew, but he never asked that question.

‘Now if you're looking for justice, you'll lay out all the evidence. You don't intentionally not ask this or not ask that and create an inference. He was looking for a way out. That's what you do. Leave a half-truth. But that question was never asked; so you're supposed to infer that these little kids were there by themselves in San Francisco, and she was going to come back the next day. I forget their ages, but they were quite small. She was only married five years so you can figure how old the kids are. Now do you think anybody would be that stupid, really? He knows the answer. I'd stake my life on it.’ (Emphasis added.)

Second, the prosecutor, in response to defense counsel's implication that the fact that the victim was not wearing her wedding ring somehow supported the claim that she had consented to sexual intercourse, said in rebuttal argument:

‘Now we raise the question, the ring problem. Mr. Green places a lot of emphasis on rings. As I sat there listening to him, I remember my mother who was married 46 years and never owned a ring, and I felt, by God the rings are so important I probably never even owned a pair, never even saw a pair in my whole life. Now does that mean that we are something different, that we are animals because we don't wear rings? But the Golden Boy says you're supposed to have rings if you're married. White people always have them. We never had enough money to buy a pair until I was almost 30 years old. Does that make me different? Then the woman explains why. This has happened on a number of occasions. Because it never happens to Mrs. Green—because if it happened to Mrs. Green she'd be divorced probably.’ (Emphasis added.)

Third, the prosecutor, in response to a defense argument that absence of the victim's husband and brother at trial weakened the credibility of her story, said in rebuttal: ‘These guys never change. All defense counsel get together and discuss their tactics and do the same thing. Do you think this is the first case I tried against him?’

Appellant contends that the vilification of defense counsel in these passages required reversal under the rule of People v. Talle, supra, 111 Cal.App.2d 650, 676–677, 245 P.2d 633. None of these statements was objected to, but vilification of counsel has been held to be a ground for reversal in aggravated cases, even when not objected to at trial. (People v. Podwys (1935) 6 Cal.App.2d 71, 44 P.2d 377; People v. Stafford (1930) 108 Cal.App. 26, 290 P. 920.) In addition, the prosecutor's first comment implied that there was additional evidence not before the jury, of which defense counsel was aware, that someone was staying with the alleged victim's children on the night of the offenses. The argument was improper. (People v. Adams (1960)182 Cal.App.2d 27, 34, 5 Cal.Rptr. 795; see Witkin, Cal. Criminal Procedure, Trial, § 450, p. 453.) The statement also implied that the prosecutor had knowledge, gained through his long experience, that all defense counsel discuss and use the same (by implication, dishonest) tactics. That comment was also improper. (People v. McChesney (1940) 39 Cal.App.2d 36, 40, 102 P.2d 455.) Although the impact of the comments could have been lessened by admonition they might, even then, have had some prejudicial effect. They must be considered in determining whether the cumulative effect of the errors reviewed caused a miscarriage of justice.

California Constitution, article VI, section 13, provides that no judgment shall be set aside, or new trial granted unless after examination of the entire cause, including the evidence, the court is of the opinion that a miscarriage of justice occurred. The errors complained of do not amount to federal constitutional error which would bring into play the strict harmless error test of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. A miscarriage of justice can therefore be found only if the court, after an examination of the entire case, is of the opinion that it is reasonably probable that a result more favorable to appellant would have been reached in the absence of error. (People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243.) An important indication of whether prosecutorial misconduct requires reversal is whether the case is close, that is, whether the evidence is evenly blanced or sharply conflicting. (People v. Perez (1962) 58 Cal.2d 229, 247–248, 23 Cal.Rptr. 569, 373 P.2d 617; People v. Beal (1953) 116 Cal.App.2d 475, 479, 254 P.2d 100; see annotation, 99 A.L.R.2d 508, supra, § 15, p. 546.)

In our case appellant testified that he effected a ‘pick up’ of the complaining witness and that she consented to sexual intercourse. His testimony is internally consistent. But this story, that the complaining witness consented to sexual intercourse with a stranger in an alcove behind a building far from home, based on acquaintance of the duration of a bus trip, could readily have been rejected by the jury. The immediate flight of the complaining witness to the approaching officer, her crying that she had been raped and that appellant had a knife, and her cowering behind the officer for protection, all tend to support her testimony at trial. Her account of the entire incident was detailed and unshaken. If the testimony of the arresting officer is accepted, appellant's story conflicts with strong circumstantial evidence; the open 11-inch weapon in appellant's pocket both supports the victim's story and contradicts that of appellant. Appellant's testimony contained no explanation of his having a large and awkward weapon open in his pocket during a claimed amorous assignation; instead he contradicted the testimony of the officer. No reason is seen for distortion or mistake of recollection by the officer or for the victim falsely to have accused appellant when the officer approached. The case is not a close one within the meaning of Beal or Perez. The misconduct complained of was serious and must not be repeated; but it was not so all-pervasive, or apparently so telling in effect, as that seen in such cases as People v. Talle, supra, 111 Cal.App.2d 650, 245 P.2d 633. It is also noteworthy that the jury found apperllant not guilty of kidnapping; this fact suggests that the prosecutor's misconduct did not overpower the jurors' own judgment. We conclude that the entire record does not show a probability that the jury would have decided differently if presented with the evidence alone without the misconduct.

The Supreme Court has observed: ‘It seems that prosecuting officials sometimes consider a holding that particular misconduct is error but not, in the circumstances, prejudicial, as establishing that as a matter of law the conduct is cause for mere rebuke but not reversal [citation] and continue to try their cases improperly in the expectation that, should a conviction be obtained, the appellate court will uphold it * * * Conduct of that kind demeans the office of prosecutor and his profession. * * *’ (People v. Linden (1959) 52 Cal.2d 1, 27, 338 P.2d 397, 410.) The court's expression is specially pertinent to the present case in view of the fact that in another appeal which we have decided today (People v. Wilkerson, 1 Crim. 8463, unpublished) similar (though not so flagrant) misconduct is charged to Mr. Beasley. We have given serious consideration to reversal of the present judgment, as a matter of discipline, to interrupt what might otherwise become a regular course of conduct. But it appears that the shameful behavior of both counsel could very easily have been suppressed if the trial judge had swiftly and authoritatively intervened. It seems to us sufficient, therefore, to point out that the court's repeated failure to rule at all in response to valid objections, and its neglect to act forcefully on its own motion, contributed to the decreased quality and unnecessary prolongation of this trial. The judges of the Santa Clara County Superior Court have the means, and ample ability, to prevent recurrence by restraining any excesses of counsel when necessary.

No contention is made by appellant concerning the fact that appellant's night of crime resulted in guilty verdicts, and judgment for punishment, for four offenses: rape, oral copulation, and false imprisonment (all while armed with a deadly weapon), and possession of a concealed weapon. But the possibility that double punishment was imposed is obvious and should be dealt with on the present appeal.

An act which is punishable under several Penal Code provisions may not be punished under more than one. (Pen.Code, § 654.)2 ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 611, 357 P.2d 839, 843.) The appropriate procedure to enforce the provisions of Penal Code section 654 at the appellate level is to eliminate punishment as to the less severely punishable offenses. (People v. McFarland (1962) 58 Cal.2d 748, 763, 26 Cal.Rptr. 473, 376 P.2d 449.) The present judgment does not specify whether appellant was given concurrent or consecutive sentences for the multiple offenses; therefore the sentences are concurrent. (People v. Hernandez (1966) 242 Cal.App.2d 351, 362, 51 Cal.Rptr. 385.) Even if defendant is sentenced concurrently, however, a judgment insofar as it imposes double punishment must be reversed as to the lesser penalty. (In re Wright (1967) 65 Cal.2d 650, 652, 56 Cal.Rptr. 110, 422 P.2d 998.)

The present judgment imposed punishment for both rape and false imprisonment. In People v. Bynes (1963) 223 Cal.App.2d 268, 272–273, 35 Cal.Rptr. 633, where the defendant had kidnapped the victim for the sole purpose of committing rape, the court reversed the judgment insofar as it punished the kidnapping. Where the evidence permits an inference, on the other hand, that a kidnapping had an objective other than the rape which was committed in the course of the kidnapping, both crimes may be separately punished. (People v. Roth (1964) 228 Cal.App.2d 522, 534, 39 Cal.Rptr. 582.) Here the sole apparent objective of the false imprisonment was to effect the sexual offenses. The rape and the false imprisonment punishments, then, cannot both stand.

Rape is punishable by imprisonment of from three years to life. (Pen.Code, §§ 264, 671.) False imprisonment effected by violence or menace is punishable by imprisonment of from one to ten years. (Pen. Code, § 237.) The punishment for false imprisonment must be eliminated.

Punishment was imposed both for possession of a dirk or dagger and for rape while armed with a deadly weapon. The information charged that appellant was guilty of possessing a concealed dirk in Santa Clara County, i. e., at and after the time the bus carrying him and the victim crossed the county line. In People v. Cooper (1967) 256 Cal.App.2d 500, 502, 64 Cal.Rptr. 282, 285, cert. den. 391 U.S. 953, 88 S.Ct. 1858, 20 L.Ed.2d 867, this court upheld punishment of both possession of a concealable firearm and robbery with a deadly weapon. In that case, however, the defendant had been seen to strap on the firearm after the robbery offense was complete. It was held that there was no double punishment because the facts allowed ‘the inference that a possible new use of the gun was in prospect’ at the time of arrest. In other cases resembling the present case rather than Cooper, it has been held that punishment was not permissible for both an offense while armed with a deadly weapon and for possession of the weapon with which the accused was armed. (In re McWhinney (1968) 267 Cal.App.2d 691, 695, 73 Cal.Rptr. 291; In re Grossi (1967) 248 Cal.App.2d 315, 321, 56 Cal.Rptr. 375.) The present record suggests that by the time appellant and his victim had entered Santa Clara County appellant had already begun to carry out a plan to trap and attack the victim when she left the bus. Any idea that appellant's possession of the weapon in Santa Clara County represented a course of conduct separate from the intended sexual attack would be ‘entirely speculative’ (cf., In re Grossi, supra, at p. 321, 56 Cal.Rptr. 375.) Therefore appellant can not be punished both for rape, while armed with a deadly weapon, and for possession of a dirk or dagger.

Possession of a dirk or dagger is punishable by a lesser term than rape while armed with a deadly weapon; therefore punishment for possession of a dirk or dagger must be eliminated.

The court did not err in pronouncing judgment both for rape and for oral copulation. (People v. Armstrong (1968) 268 Cal.2d 324, 326, 74 Cal.Rptr. 37.)

The judgment is reversed insofar as it imposes concurrent sentences for false imprisonment and possession of a dirk or dagger; in all other respects it is affirmed.

I concurred in this court's decision affirming the judgment of conviction in People v. Wilkerson (1 Crim. 8463, unpublished), mentioned in the majority opinion herein, because I agreed that the misconduct of the prosecutor in that case did not warrant reversal. In the present case the misconduct of the same prosecutor was of such proportions, in my opinion, that the judgment should be reversed in all respects except for appellant's conviction for possession of a concealed dirk or dagger. (Pen.Code, § 12020.) I therefore dissent from the majority opinion insofar as it holds to the contrary.

The knife was found on appellant's person; he admitted its possession; and I agree with the majority's description of it and their conclusions concerning it. Since these circumstances alone indicate appellant's guilt on the possessory count, irrespective of the evidence as to the other crimes charged, I do not consider it ‘reasonably probable,’ as to that count, ‘that a result more favorable to [the appealing party] would have been reached’ (People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243, 255) in the absence of the prosecutor's misconduct. I would therefore affirm the judgment convicting appellant of having violated Penal Code section 12020.

As to the other crimes charged, I agree with the majority's analysis and definition of the prosecutor's aitions as gross and reprehensible misconduct. I conclude, however, that the misconduct requires reversal of the judgment as to the other crimes. Only the testimony of the complainant supports the conclusion that those crimes were committed, at point of the knife or at all. She testified that appellant followed her from the bus after having sat with her during an essentially uneventful ride from San Francisco, accosted her with the knife, walked her about in a street and to an alcove behind a restaurant building, pulled down her slacks and underpants, and forced her, at knifepoint, to engage in various sex acts for several minutes. Appellant testified that he struck up an acquaintance with her at the bus terminal in San Francisco, where he had concluded that he could ‘pick her up’; that she responded to his physical advances on the bus; and that he had sexual intercourse with her, near the Moffett Field bus stop, as the result of a mutually-agreed assignation which involved no force and which was carried out with her full participation and consent.

While I might agree with the majority's view that appellant's account could ‘readily have been rejected by the jury,’ I do not find the complainant's testimony to be so overwhelmingly more credible as to resolve the real question before us. Although the neighborhood of the bus stop was lonely (the hour was apparently after 3 a. m.), she testified that at least two other persons were nearby when she first became ‘scared’ upon realizing that appellant was following her; that she was aware, at all relevant times, that several residential structures and a motel were in her close vicinity; and that appellant pocketed the knife more than once before the sex acts occurred, and walked several feet away from her on one such occasion. Despite the apparent occasion and opportunity to cry out or to attempt escape, or both, under some of these circumstances, she did neither until she saw the police officer; the officer testified that when he discovered the couple he had heard only ‘voices' from behind the restaurant and saw a man and a woman ‘standing’ in the alcove.

The officer did not ‘notice’ whether the complainant's clothing was in disarray when she ran to him (although, testifying to his recollections at the time, he accurately described what she was wearing). His (the officer's) discovery of the knife in appellant's pocket corroborated the complainant's testimony to the extent of showing her knowledge that it was there. (In his trial testimony, appellant attempted to explain that the complainant had learned of the knife under innocuous circumstances.) The officer, however, saw no use of force and no sexual activity; all that he concluded concerning the alleged crimes was learned from the complainant after the fact, and could have been contrived by her when she saw him. She testified that she was not cut, nicked or bruised during the episode, and that none of her clothing was torn. She was examined by a doctor ‘afterward’; the doctor did not testify. (See People v. Beal (1953) 116 Cal.App.2d 475, 479, 254 P.2d 100.)

These factors do not demonstrate appellant's veracity or the complainant's lack of it (she explained some of them), nor do they diminish the clear sufficiency of her testimony to support the convictions in question. Perceiving them, however, I am not persuaded that her testimony is entitled to such overriding weight, in this court, as to dispel the prejudicial effect of the prosecutor's misconduct. The same factors also emphasize that this was a close case in fact. It was not ‘close’ because the People's evidence was essentially weak, as was true in the cases cited on this point by the majority (People v. Perez (1962) 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617 [where there was a ‘minimal evidentiary framework in support of the judgment’ (p. 249, 23 Cal.Rptr. at p. 580, 373 P.2d at p. 628)]; People v. Beal, supra, 116 Cal.App.2d 475, 254 P.2d 100 [where the case was ‘closely balanced’ (p. 479, 254 P.2d 100) because the evidence was ‘weak’ (p. 478, 254 P.2d 100)]). This case was ‘close’ because the jurors' resolution of the opposing testimonial accounts, as to the issue of the complainant's consent, depended exclusively upon which of the conflicting witnesses they believed (as in People v. Conover (1966) 243 Cal.App.2d 38, 54, 52 Cal.Rptr. 172).

As this choice by the jury was decisive, and its impression of appellant's veracity thus the sole basis of any choice in his favor, he was particularly prejudiced by the prosecutor's gratuitous and unfounded suggestions that he and his attorney had concocted his story during the months preceding the trial. The prosecutor's first suggestion to this effect was made during jury voir dire, not in final argument; it thus appears to me that he calculated to pervade the entire trial with his theory that appellant's testimony had been fabricated, and to capitalize on this atmosphere (which he did) in his argument to the jury. His improper assurances concerning appellant's guilt included a reminder to the jury that he and appellant were both black persons. The reference to his own race had the effect of additionally prejudicing appellant by injecting a spurious racial issue in the case, not alone of responding to one. The situation was aggravated by the other instances of misconduct described in the majority opinion. All, read with other episodes appearing in the record, reflect consistent and pervading misconduct by the prosecutor throughout the trial. No instances thereof were excusable, especially in the volatile context of a sex-crime prosecution; none was effectively controlled or cured by the trial court.

I would sum up these circumstances by quoting another court which, although dealing with inapposite facts, said all that I might say here: ‘In the case now engaging our attention, as we have heretofore noted, the evidence is in sharp conflict, it is true that the jury had an opportunity to observe the demeanor of the witnesses, and may have had reason to return the verdict they did, irrespective of the error committed during the trial. As to this of course, we can say nothing. From the mere record as we read it, however, the errors may have turned the scale in favor of the prosecution. It is the bounden duty of courts to insist that a defendant be fairly convicted, because if he is not so convicted he should not be convicted at all; and to hold otherwise would be to provide ways and means for the conviction of the innocent. The fact that the evidence may point rather conclusively to defendant's guilt does not take from the latter his right to * * * a fair and impartial trial.’ (People v. Lapin (1956) 138 Cal.App.2d 251, 264, 291 P.2d 575, 583–584.)

Under the same circumstances, I am ‘of the opinion ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’' (People v. Watson, supra, 46 Cal.2d 818 at p. 837, 299 P.2d 243 at p. 255.) Apart from the precise dimensions of the Watson test for reverible prejudice, I think that the prosecutor's misconduct ‘improperly disturbed’ a close testimonial balance (People v. Conover, supra, 243 Cal.App.2d 38 at p. 54, 52 Cal.Rptr. 172), ‘contributed materially to the verdict’ (see People v. Berryman (1936) 6 Cal.2d 331 at pp. 337–338, 57 P.2d 136), and thus operated to deny appellant a fair trial. (People v. Perez, supra, 58 Cal.2d 229 at p. 250, 23 Cal.Rptr. 569, 373 P.2d 617; People v. Conover, supra.) In all events, I conclude that there has been a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution, and that the ‘saving grace’ of that provision should not be applied. (People v. Perez, supra, 58 Cal.2d at p. 251, 23 Cal.Rptr. 569, 373 P.2d 617. See Witkin, California Criminal Procedure (1963) § 757, pp. 729–730.)

I would affirm the judgment insofar as it convicts appellant of a violation of Penal Code section 12020, but would reverse it in all other respects.


1.  Pen.Code, § 12020: ‘Any person * * * who carries concealed upon his person any dirk or dagger, is guilty of a felony, * * *.’

2.  Pen.Code, § 654: ‘An act or omission which is made punishable * * * by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; * * *.’

CHRISTIAN, Associate Justice.

DEVINE, P. J., concurs.

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