PEOPLE v. GOLDEN (1960)

Harold Joseph Golden was accused by information of two offense of so-called statutory rape, the victim being a 14-year-old girl we may refer to as A. B. The first offense was committed on, March 28, 1958, the second on May 17, 1958. In a jury trial the defendant was convicted of both offenses, as misdemeanors, his motion for a new trial was denied and he was sentenced to a year in jail on each count. He appeals from the judgment and the order.

The grounds of appeal are (1) insufficiency of the evidence of the People, (2) it was error to permit the People on rebuttal to prove that unsuccessful efforts had been made to serve a subpoena on defendant's step-daughter, (3) the times of the commission of the offenses were not fixed with certainty and (4) it was improper to permit one of the state's witnesses to refresh her recollection from a memorandum she had previously made. We have concluded that there was sufficient evidence to justify the verdicts and that the trial was conducted without error.

In substance, the claim of insufficiency of the evidence is no more than a contention that the testimony of the prosecutrix was inherently improbable and that she was shown to be unworthy of belief. Her testimony described the acts of defendant in raw and circumstantial detail. It is unnecessary to relate it. We need say no more than that the jurors could reasonably have been convinced that the prosecutrix had actually suffered the experiences which she described. The first offense, she testified, was committed early one morning in the bathroom of defendant's home. She had spent the night in defendant's home, had occupied a bed with defendant's step-daughter, April Wells, and had arisen before the latter was awake. The other offense was described as having been committed in mid-afternoon, in defendant's automobile, parked in an isolated spot on a hillside, close to but not in view of habitations, In neither case was force used and in neither case did the prosecutrix offer more than a mild remonstrance.

Defendant was married and the father of two sons of a previous marriage, Allen, aged 16, and Bobbie, who was younger. The boys lived in Alhambra with their mother. Allen and A. B. were schoolmates in high school in Alhambra where A. B. also lived. They had gone together socially. Defendant met A. B. for the first time March 28th when he drove Allen to her home to take her to a party at defendant's home in Sherman Oaks. Also present at the party were Mrs. Golden, her daughter, April, and several other persons. Defendant, Allen and A. B. went out to dinner at a cafe, after which they drove to an apartment house from which defendant had recently moved. Defendant sent Allen into the apartment house; A. B. remained in the car with defendant. Questioned by defendant as to her ambitions, she told defendant she hoped to be an actress; defendant suggested that she should become a model and stated he could help her. He questioned her whether she went around with boys and had been made love to. Pretending that it was necessary to know whether she possessed a figure suitable for modeling defendant succeeded in persuading her to bare her legs; they drove into an alley and then into a garage where they remained 15 or 20 minutes. There defendant removed some of the girl's clothing and fondled her in a lewd manner. They returned to the apartment house and took Allen into the car. A. B. estimated that they were away from the house 20 minutes or more. Defendant testified that he and A. B. waited in the car while Allen was in the apartment house and that Allen was not gone more than a couple of minutes. On April 1st, at the home of a friend of A. B.'s, defendant, Allen and two other boys called for A. B. in a car; they went to A. B.'s home, secured permission from her aunt to take her to a birthday party; defendant took the boys to the home of Allen's mother, returned fo A. B., picked up Allen and the boys and went to defendant's home to honor Mrs. Golden's birthday. A. B. testified that she had left her home without taking time for a shower and asked and was given permission to take a shower in defendant's home; while she was in the shower defendant opened the door, looked in and said ‘not bad.’ Defendant and his wife, her daughter April, Allen and A. B. went out to dinner. They returned to defendant's home where A. B. spent the night, sleeping in a bed with April, and in the morning she arose before April had awakened; she went to the kitchen to make coffee, defendant appeared in a dressing gown and took over the coffee-making; a workman came to the front door, A. B. left and went to the bathroom; defendant appeared in a dressing gown and by means of persuasion succeeded in committing upon A. B. an act of rape. May 17th, defendant took A. B. and a friend we shall call M. A. to his home to attend a surprise party for Allen. Some twelve guests were present. At defendant's request A. B. went out to defendant's car and entered it. She had asked M. A. to accompany her but defendant drove away before M. A. appeared. Defendant drove to a dirt road not far away, beyond the sight of houses. Without resistance from A. B. defendant committed an act of rape. They were absent from defendant's home a half an hour or so.

Others of the guests testified that they observed the departure of defendant and A. B. in defendant's car and witnessed their return. They also testified that April was present with them at these occurrences. The party adjourned to a cafe. After dinner defendant remained at the cafe and the others returned to the Golden home. Two weeks later defendant arranged to meet A. B. near her home; when he arrived M. A. was with A. B.; the girls entered the car, defendant drove a short distance, parked on the street and proceeded to interest the girls in becoming models, stating that they could ‘work on the side’ and ‘get a lot of money.’ He showed them an electric razor and asked them to select the colors they would prefer. The girls said they did not believe they had suitable figures for modeling, defendant insisted that they had, and using the ruse that had been successful with A. B. defendant prevailed upon the two girls to expose their breasts and M. A. to lower her capri pants. Without physical resistance upon their part defendant fondled the girls in a lewd manner. This conduct of defendant was testified to in detail by both girls. In his direct examination defendant was not questioned about the occurrence, but upon cross-examination testified that it did not happen. Evidence was given that upon medical examination A. B. was found to have a ruptured hymen.

The point that the times of the commissions of the offenses were not fixed with certainty is untenable. Specific dates were stated in the information and the dates of the offenses were stated positively in the testimony of the prosecutrix. Admittedly, defendant and the prosecutrix were in defendant's house at the time of the first offense, as fixed by the prosecutrix, and several witnesses testified that they went away and returned in his car at the time she fixed as that of the commission of the second offense. The times of the commission of the offenses were definitely fixed.

During the cross-examination of Mrs. Golden she was asked whether her daughter April would be at home on the following day in order that she could be served with a subpoena, and she answered that she would be at home after school and in the evening. At the request of the People, stated in chambers, a short continuance was granted, over the objection of defendant, in order to allow April to be produced as the People's witness. In asking for the continuance the deputy represented that he considered April to be a material witness; A. B. had testified that she spent the night with April and left the bed in which they had slept early in the morning of the commission of the first offense; the bathroom was entered through April's bedroom; April was present at a party in defendant's home which A. B. attended, and which she testified she left with defendant immediately preceding the commission of the second offense. The deputy assured the court that he wished the testimony of April, whatever it might be, that he was willing to use her as a witness for the state. The People caused a subpoena to be issued for April and one for Mrs. Golden and to be placed in the hands of process servers. When court reconvened, the deputy informed the court in chambers that efforts to serve the subpoenas had been unsuccessful and he offered to prove the efforts that had been made to effect service. The defendant objected. The objection was overruled and two officers testified to having made futile attempts to make service. Neither April nor Mrs. Golden could be located. During the course of the discussion in chambers the deputy stated that he considered the evidence of April's disappearance to be material as tending to prove that defendant had concealed her or participated in her concealment, and also that the evidence would tend to impeach the testimony of Mrs. Golden that April would be available. Defendant contends that the evidence was inadmissible for either of the above stated purposes. No doubt it was inadmissible as impeachment of Mrs. Golden, inasmuch as it related to a collateral and immaterial matter.

It cannot be doubted that the evidence of April's disappearance would have justified an inference that defendant was in some measure responsible for it. Not only that, but it would have been reasonable for the jurors to believe that if April's testimony would have been favorable to defendant rather than to the prosecution he would have made certain of her presence as a witness. He knew that it was the intention of the prosecution to require the presence of April and he must have known that if she was made unavailable he would be charged with responsibility for her disappearance. He had an opportunity to offer any evidence that was available which might tend to relieve him of that responsibility. He offered no such evidence. If the jurors believed that he intentionally prevented the appearance of April as a witness he had only himself to blame.

But there was an independent reason for the state to use April as a witness. The deputy argued to the court in chambers that in the former trial on the same charges April and not been called to the stand by defendant, and that he, the deputy, in his arguments to the jury had made a strong point of that fact. He also realized that if he intentionally failed to call April as his witness he would be in no position to find fault with defendant for not having called her. He realized that his failure to produce her would give rise to a presumption that he believed her testimony would have been adverse to the People. He wished to avoid being placed in that position. This was a valid reason for calling April as a witness.

Where a party to an action wilfully fails to produce a witness who can testify on a material issue it may be presumed that the testimony of the witness would have been adverse to such party. Code Civ.Proc. § 1963, subd. 5; People v. Crowder, 126 Cal.App.2d 578, 272 P.2d 775. In order to escape from that position the party has a right to prove that the testimony of the witness was unavailable. People v. Gutierrez, 128 Cal.App.2d 387, 275 P.2d 65.

The evidence on this subject was submitted to the jurors for such use as they might see fit to make of it. The arguments of counsel to the jury are not contained in the transcript. It does not appear that it was argued to, or even stated in the presence of the jury, that the evidence tended to prove that the defendant had spirited away a witness whose presence was desired by the People. There was no error in the admission of the evidence of the unsuccessful efforts that had been made to serve the subpoena upon April.

The next assignment of error is that it was improper to permit the recollection of Susan Ross to be refreshed by a written statement that she had previously made. A consideration of this point requires a statement of an occurrence at a dinner party in a cafe on May 17th, after A. B. and defendant had returned from an automobile ride to which the former testified. Katherine Ross was one of the guests. She testified that during the party she saw A. B. leave the party and later saw her return with the defendant in his automobile. They were gone about 20 minutes. Other witnesses had testified that during the dinner party at the cafe defendant produced a $50 bill which was passed around and handled by numerous of the guests until it had reached A. B. and that A. B. placed it inside the neck of her dress. Defendant testified that A. B. never did return the $50 bill, although he telephoned her numerous times asking for it and she promised to return it. A. B. testified that she had not taken a $50 bill or even seen one and that she had had no conversation with defendant concerning a bill. Susan Ross was asked whether she saw a $50 bill during the evening and testified that she did not remember, but that no one passed to her a $50 bill. She testified that her memory was somewhat hazy as to what had happened on the occasion but that at the request of Mrs. Boyd, the principal of A. B.'s high school, she had written down what she remembered about the party and that it would refresh her recollection to read over what she had written. The statement was handed to her and she identified it, stating that the matter was more clear in her mind at the former time than it was at the present. She was asked to read the document and tell whether it refreshed her recollection and whether she did see or hear about the $50 bill. Defendant registered an objection, which was overruled. After reading her statement, Miss Ross testified that she still did not remember seeing the $50 bill. The written statement was marked as a State's exhibit for identification but was not introduced into evidence.

We are at a loss to discover any logical purpose in having the witness read her earlier statement. If the deputy had stated that his purpose was to strengthen the testimony of the witness by insinuating that on a previous occasion, when her memory was fresher, she did not remember seeing the $50 bill, he should not have been permitted to proceed. But it was a trivial incident. As against the testimony of several witnesses that they saw and handled the bill the testimony of Miss Ross that she did not remember seeing it was insignificant.

If the jurors had believed that A. B. took and kept the $50 bill they would naturally have had serious doubts as to her credibility and motives. But they could also have regarded the incident as a tragic consequence of defendant's representations to the young girls that they could do modeling and ‘work on the side’ and ‘get a lot of money.’

Counsel who represented defendant do not suggest that the credibility of the prosecutrix can be reexamined on the appeal. They contend only that her testimony was incredible. But as we said in the beginning it was a reasonable conclusion that she had suffered the experiences which she described.

The evidence was ample to justify the verdict and the case was fairly tried.

The judgment and order are affirmed.

SHINN, Presiding Justice.

VALLEE and FORD, JJ., concur.