PEOPLE v. TURNER (1979)

On the complaint of one Jeanette, a 19-year-old black girl, defendant Samuel Turner, a black man, was charged with the crimes of kidnaping (Pen.Code, § 207), assault with intent to commit rape (Pen.Code, § 220), and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). It was further alleged that he was armed with, and had used, a firearm in the commission of the offenses. (Pen.Code, §§ 1203.06, 12022, 12022.5.)

He was found guilty by a jury on the charges of assault with intent to commit rape and assault with a deadly weapon. But rejecting the related testimony of Jeanette, the jury found him not guilty of the kidnaping charge and further, that he was not armed with and did not use a firearm.

Imposition of sentence was suspended, and Turner was placed upon probation for five years conditioned upon his serving one year in the county jail. His appeal is “from the judgment,” which we treat as from the order granting probation. (See Pen.Code, § 1237.)

The issue is whether the jury's verdicts were supported by substantial evidence. They were founded entirely upon the complaining witness' testimony which, with some other relevant evidence, we now relate.

Around 2:30 o'clock on the morning of August 27, 1976, Jeanette was waiting at an East Oakland street corner for a bus. A man drove up in a black and white “TR6” or “TR7.” Armed with a revolver he emerged from the vehicle and ordered her to get into it. Fearful for her life and safety she complied. The car was being driven to a place “near the water.” “[T]hat's when he was feeling on my legs. He touched my breast. And he started talking about making love․ And at that particular time I believe I was smoking a cigarette. He took the cigarette out of my mouth, and he was hitting me. And I wasn't saying anything. He told me to shut up, bitch․ He hit me in my mouth, my lips, and my right—my right jaw․ My lips were swollen. The top of my lips were swollen and blood was coming out of them. And my jaw was just sore. I don't know if it was swollen or what․ He tried—well, after I jumped out of the car my pants was zipped down. He tried to take my pants off. And he told me to take them off, and I wouldn't․ I was trying to stop the car… I was messing with the stick. I guess I was trying to put it in reverse, I don't know. And after I—each time I would try to get out of the car, he would hit me more and harder. And I was trying to open up the door, and trying to mess with the stick, and I found out the door was locked. And each time that I did that he would grab at my arm all the time while he was still driving․ Then I guess after that I—then that's when he threatened to kill me. He told me, you know, just to shut up. ‘Shut up, bitch. If you don't, I'm going to kill you.’

“And that's when I just decided that I would just jump out of the car. I would rather take my chances jumping out of the car․ And I jumped out․ Then after I jumped out of the car, some way or another my foot was under the car, and when he took off it ran over my foot․ [The car proceeded] straight down and after you turn—as you keep straight down, and you turn, and then there is an exit to get on the freeway․ I guess it was about two or three minutes later, two black men in a station wagon car which was white came by and they seen me in the middle of the street and, you know, they asked me what happened because I was crying and I was coughing up, you know, I was spitting. And so they—one of them got out of the car and said, ‘Well, what's wrong? What happened?’ So I showed them my leg. So they told me that they would take me to the gas station so I could call the police, and they didn't want to be involved in it.”

The police were called and soon, about “3:50 in the morning,” a patrolman arrived on the scene. Jeanette was “upset,” he said, and appeared to have “just been through an ordeal,” and she “had bruises,” and what “appeared to be scratch marks on her face.” And “her right foot … which was swollen … was bruised and quite scratched at the time.” She explained to the policeman what had happened. “It was a late model Triumph TR6 or 7, two-door convertible, black convertible.” She described her assailant as “approximately six feet, maybe taller,” “a Negro, male, adult,” without mentioning any “distinguishing physical marks, such as scars, or anything” or “eyes.”

Later that morning Jeanette talked to a female police officer, describing her assailant as a “male Negro, approximately 35, … chubby and stocky build,” “approximately 150 through 160 pounds” wearing a “green suit” and a “short natural.” He was “well dressed” of “medium complexion,” and she didn't “say anything about his eyes.” The man's height was then placed at “approximately five, seven.”

Some time within the next three weeks Jeanette was “over Valerie's house.” There she met a “young man” and told him “about the incident.” She described her assailant, “guessing” at his weight and height. Otherwise, she testified: “A. I told him that he had on a suit: I told him that the suit was green and I thought it was—it could have been three piece or it could have been two piece. It was green, with other colors in it. I told him that he was built heavy. I told him that he was light-skinned. I told him that he didn't have any hair on his face. And I also told him that his eyes was very big. Q. Is that everything you told the young man? A. And I told him what kind of car he was in. And I also told him where I was standing at, where it happened. And that's it, I think. I am quite sure it is.”

When Jeanette had completed her description, the “young man” gave her the name “Sam Turner,” whose place of employment was “Tracy Buick,” and told her “to check it out.” She “didn't write it down,” but said, “Once I got it I called [the police sergeant] and I gave it to him.” She told the sergeant that “Samuel Turner” was “the name of the person who had done that,” and that the “person worked [at] Tracy Buick in Oakland.” The sergeant somehow obtained a picture of Sam Turner of Tracy Buick. Upon seeing the photograph Jeanette said that's “the man.” The photograph was that of defendant Turner.

Jeanette had never before, or since, seen the “young man”; she had met him only “once,” at “Valerie's house.” She “did not know the name of the young man that gave [her] the name Sam Turner.” And she did not know the “day or the time” of day that she met him. Nor did she know “Valerie's” last name, or how to find her, or “how to get to Valerie's house.” She had “no present recollection of the way [she] got to Valerie's house; …” She was driven there by “Chuck” whose last name and address she did not know.

At the trial Jeanette several times asserted she was “positive” that Turner was her attacker. She said: “I won't forget his face. I won't never forget it as long as I live.” Other than her testimony there was no evidence whatever tending directly, or by inference, to incriminate Turner in the charged offenses.

Turner testified on his own behalf, denying all of Jeanette's inculpatory testimony. When he first saw his accuser at the preliminary examination, he recognized her as a girl who had been “on the corner prostituting” near his employer's place of business. Around that time Turner had been trying to sell an automobile to a man. “He said he wanted to see a TR7, a white TR7; and at that particular time, there was a TR7 sitting outside on the—a white one on the used car lot, because we was demoing it quite a bit. So he and I went out in the car. We took a drive in the car. I drove the car first. Then I let him drive the car. And then he came back and he said that before I can do anything, I'd like to bring my lady down and let her take a look at it.” The prospective customer left and soon returned with his “lady,” who was Jeanette. During the course of the continued negotiations, Jeanette expressed a willingness to buy the car at a price which Turner described as “giving” it away. This led to more and more unfriendly discussion, which brought about Turner's invitation to “get yourself out of here,” and Jeanette's friend's response, “‘Why don't you throw me out.’ And [Turner] said, ‘That's my next step, to throw you out of here.”’ The couple drove off with the man saying “You're going to hear from me later.” A couple of days later Jeanette drove by and “hollered out the window, ‘Don't buy a car there․ That son of a bitch is no good.”’ Later Turner saw her with other girls “prostituting” on the corner and he “called her a few names.”

Other evidence indicated that Turner had no criminal record, and had received an honorable discharge from the armed forces. He had been steadily employed as an automobile salesman, and was married and supporting the children of his wife's former marriage.

On rebuttal Jeanette generally denied the testimony of Turner relating to her “prostituting on the corner” and the incident at Tracy Buick.

Turner, as noted, contends that the jury's verdicts were unsupported by substantial evidence.

It has, of course, long been the law of this state that a criminal judgment of conviction will not be set aside by a reviewing court for insufficiency of the evidence where “there is substantial evidence tending to support the verdict of the jury, ..” (People v. Tedesco (1934) 1 Cal.2d 211, 219, 34 P.2d 467, 470.)

The concept of substantial evidence and its proper appellate application has been an uncertain and evolving one.

Earlier in the state's history it was sometimes said: “On appeal that portion [[[[of the evidence] which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment.” (E. g., People v. Thomas (1951) 103 Cal.App.2d 669, 672, 229 P.2d 836, 838.) And, alternatively, the rule was often stated as: In order to reverse a judgment on the ground of insufficiency of the evidence, it must be found “that upon no hypothesis whatsoever is there sufficient evidence to support the judgment” (e. g., People v. Domingo (1962) 210 Cal.App.2d 120, 124, 26 Cal.Rptr. 315, 318); or, “To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions” (e. g., People v. Huston (1943) 21 Cal.2d 690, 693, 134 P.2d 758, 759 [overruled on other grounds People v. Burton (1961) 55 Cal.2d 328, 352, 11 Cal.Rptr. 65, 359 P.2d 433]). Such statements of the rule have been followed hundreds, perhaps thousands, of times. (See 17 West's Cal.Dig., Criminal Law, §§ 1158-1159.6, pp. 394-586.) Under any of these, and similar, early versions of the rule, accepting the “hypothesis” that Jeanette's positive identification of Turner was truthful and accurate, and “rejecting” all contrary inferences arising from her testimony, there was in this case the required substantial evidence.

In People v. Bassett (1968) 69 Cal.2d 122, 70 Cal.Rptr. 193, 443 P.2d 777, the state's high court undertook to clarify the many statements and versions of the rule. The court, as here relevant, stated:

“‘Upon appeal, the reviewing court is bound to view the evidence most favorably in support of its judgment․ But the jury's discretion is not absolute… “Implicit in our duty to determine the legal sufficiency of evidence to sustain a verdict is our obligation, in a proper case, to appraise the sufficiency and effect of admitted or otherwise indubitably established facts as precluding or overcoming, as a matter of law, inconsistent inferences sought to be derived from weak and inconclusive sources.” …”’ (p. 137, 70 Cal.Rptr. pp. 202-203, 443 P.2d pp. 786-787.)

“… we must resolve the issue in the light of the whole record—i. e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent․ [I]t is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for ‘Not every surface conflict of evidence remains substantial in the light of other facts.”’ (p. 138, 70 Cal.Rptr. p. 203, 443 P.2d p. 787; emphasis added, fn. omitted.)

“… ‘The critical word in the definition is “substantial”; it is a door which can lead as readily to abuse as to practical or enlightened justice.’ Seeking to determine the meaning of ‘substantial’ in this connection, the court in Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54, 58, canvassed dictionary and judicial definitions and concluded that the term ‘clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with “any” evidence. It must be reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’ [¶] The same standards control, a fortiori, when it is a criminal judgment which is challenged on the ground of insufficiency of the evidence. In resolving that contention the appellate court is required to determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt… The prosecution's burden is a heavy one: ‘To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.’ … Accordingly, in determining whether the record is sufficient in this respect the appellate court can give credit only to ‘substantial’ evidence, i. e., evidence that reasonably inspires confidence and is ‘of solid value’ as the court said in Teed.” (pp. 138-139, 70 Cal.Rptr. pp. 203-204, 443 P.2d pp. 787-788; emphasis added.)

Since its rendition People v. Bassett has been closely adhered to. See People v. Caudillo (1978) 21 Cal.3d 562, 573, 146 Cal.Rptr. 859, 580 P.2d 274; People v. Burnick (1975) 14 Cal.3d 306, 331, 121 Cal.Rptr. 488, 535 P.2d 352; People v. Reyes (1974) 12 Cal.3d 486, 496-497, 116 Cal.Rptr. 217, 526 P.2d 225; In re William F. (1974) 11 Cal.3d 249, 253, 113 Cal.Rptr. 170, 520 P.2d 986; People v. Kunkin (1973) 9 Cal.3d 245, 250, 107 Cal.Rptr. 184, 507 P.2d 1392; In re Roderick P. (1972) 7 Cal.3d 801, 808-809, 103 Cal.Rptr. 425, 500 P.2d 1; People v. Tribble (1971) 4 Cal.3d 826, 834, 94 Cal.Rptr. 613, 484 P.2d 589; People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Redmond (1969) 71 Cal.2d 745, 755-756, 79 Cal.Rptr. 529, 457 P.2d 321; Contrary earlier authority must be deemed to have been impliedly overruled. (See In re Lane (1962) 58 Cal.2d 99, 105, 22 Cal.Rptr. 857, 372 P.2d 897, 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 702, pp. 4618-4619.)

People v. Bassett's requirement that reviewing courts resolve ““‘the legal sufficiency of evidence to sustain a verdict”’ … in the light of the whole record,” is closely attuned to growing constitutional concern.

In 1970, the United States Supreme Court, in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, addressed itself generally to the need to safeguard the criminally accused “from dubious and unjust convictions, …” (p. 362, 90 S.Ct. 1068.) It stated: “[A] society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt․ [¶] .. [U]se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. [¶] Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt …” (Id., pp. 363-364, 90 S.Ct. pp. 1072-1073; emphasis added.)

California has reiterated the same constitutional principle. “The due process clause of the Fourteenth Amendment to the federal Constitution protects the accused against conviction except upon proof beyond a reasonable doubt.” (People v. Serrato (1973) 9 Cal.3d 753, 766-767, 109 Cal.Rptr. 65, 75, 512 P.2d 289, 299 and see People v. Coleman (1975) 13 Cal.3d 867, 875, 120 Cal.Rptr. 384, 533 P.2d 1024; People v. Vann (1974) 12 Cal.3d 220, 227, 115 Cal.Rptr. 352, 524 P.2d 824.)

As guardians of such constitutional rights it becomes the duty of the nation's appellate courts to make their “own independent examination of the record when federal constitutional deprivations are alleged ․” (Napue v. Illinois (1959) 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217.) “[T]rial courts must take strong measures to ensure that the balance is never weighed against the accused … [and] appellate tribunals have the duty to make an independent evaluation of the circumstances.” (Sheppard v. Maxwell (1966) 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600.) In such circumstances the court has a duty to make an “independent review of the facts of each case.” (Jacobellis v. Ohio (1964) 378 U.S. 184, 189, 84 S.Ct. 1676, 1678, 12 L.Ed.2d 793; see also Frazier v. Superior Court (1971) 5 Cal.3d 287, 293, 95 Cal.Rptr. 798, 486 P.2d 694; People v. Haston (1968) 69 Cal.2d 233, 257, 70 Cal.Rptr. 419, 444 P.2d 91; Maine v. Superior Court (1968) 68 Cal.2d 375, 382, 66 Cal.Rptr. 724, 438 P.2d 372; People v. Coffey (1967) 67 Cal.2d 204, 219-220, 60 Cal.Rptr. 457, 430 P.2d 15; People v. Hopper (1969) 268 Cal.App.2d 774, 778, 75 Cal.Rptr. 253.)

Following People v. Bassett and the above constitutional authority, courts of this state have held as follows: “The substantial evidence rule [now] mandates [a reviewing court's] consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact.” (People v. Kunkin, supra, 9 Cal.3d 245, 250, 107 Cal.Rptr. 184, 188, 507 P.2d 1392, 1396; emphasis added.) “Viewing all of the evidence … [the court concludes] that there is substantial evidence in support of the verdicts reached by the jury.” (People v. Beagle (1972) 6 Cal.3d 441, 450, 99 Cal.Rptr. 313, 318, 492 P.2d 1, 6; emphasis added.) “‘Appellate duty is not satisfied … when substantial evidence emerges on one side. Rather, the judges must look to the evidence on both sides and not limit their scrutiny to that supporting the verdict․ Their objective is not to replace the jury but to satisfy themselves that the verdict is reasonable.”’ (People v. Fonville (1973) 35 Cal.App.3d 693, 703-704, 111 Cal.Rptr. 53, 59; emphasis added.)

People v. Bassett's restatement of the substantial evidence rule applicable to criminal cases gives practical effect to the terse comment of Justice Dooling in People v. Williams (1962) 57 Cal.2d 263, 275, 18 Cal.Rptr. 729, 736, 368 P.2d 353, 360: “‘For a guilty man to escape punishment is a miscarriage of justice, but for an innocent man to be convicted is unthinkable.”’

We now advert to the case at hand and inquire, as directed by People v. Bassett “‘whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.”’ (See also People v. Reyes, supra, 12 Cal.3d 486, 496, 116 Cal.Rptr. 217, 223, 526 P.2d 225, 231; People v. Kunkin, supra, 9 Cal.3d 245, 250, 107 Cal.Rptr. 184, 507 P.2d 1392; People v. Reilly, supra, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.) That burden, as noted, will only be satisfied by production of “substantial evidence” of guilt, which in turn will be such evidence as on the “whole record” “reasonably inspires confidence and is ‘of solid value.”’

As noted, the People's entire case depended upon the testimony of Jeanette. We are of the opinion that from the scant information given by her to the “young man” at “Valerie's house” he might, from Oakland's large black population, forthwith designate Jeanette's assailant by name and address, is most unlikely. It stretches the so-called law of probabilities to the snapping point. Also improbable, we think, would be the prompt acceptance of such questionable information from a stranger as true by a crime victim, and her unqualified report to the police of the “name of the person” who assaulted her and where “the person” worked. And those improbabilities were immeasurably compounded by Jeanette's lack of knowledge of the name or whereabouts of the “young man” or of “Valerie,” or of “Chuck,” or of the time or place or circumstances of her meeting with them.

Under the criteria of People v. Bassett and from our examination of the whole record we conclude, as a matter of law, that the People produced no evidence of Turner's guilt at the trial which may reasonably be deemed to have “inspire[d] confidence,” or was “credible” or “‘of solid value.”’ There was accordingly no substantial evidence of guilt and Turner's conviction will be set aside.

It is found unnecessary to resolve other contentions raised by Turner on his appeal.

The order granting probation is reversed.

ELKINGTON, Associate Justice.

RACANELLI, P. J., and NEWSOM, J., concur.