People v. Lindsay

Defendant, who was found guilty by a jury on 17 of 22 counts of an indictment,^[1] appeals from the judgment of conviction. Counts 1 to 7, inclusive, charge offenses allegedly perpetrated upon the person and against the property of Miss R; Counts 8 to 16, inclusive, upon the persons of Mr. M and Miss S; Counts 17 to 20, inclusive, upon the persons of Miss K and Mrs. K, and the property of Mrs. K; and Counts 21 and 22, upon the person and property of Miss C. Preliminary to a discussion of the questions raised on appeal we proceed to discuss the nature of these counts and the facts pertinent to the commission of the crimes

The “R” Counts

Defendant was found guilty on five of the seven counts applicable to Miss R. He was convicted of counts charging a violation of the following Penal Code sections: Count 1, section 459 (burglary); Count 2, section 288a (sex perversion) ; Count 3, section 261, subdivision 4 (rape); Count 4, section 261, subdivision 4 (rape); and Count 7, section 211 (robbery) .^[2] The facts related to these counts follow:

On October 17, 1961, Miss R was awakened shortly after going to bed around 11 p.m. by a flashlight shining in her face. A man was standing inside her bedroom door with the flashlight in one hand and a knife in the other. He said, “ ‘Don’t scream. Do you want to get hurt? Do you want to get hurt?’ ” He was wearing cotton garden gloves. He approached the bed, removed the covers and placed a pillow over her head. When she asked him to remove it, he slipped the pillowcase off and covered her face with it. He undressed and got in bed with her. After he was in bed, he began feeling Miss R’s private parts and tried to kiss her. He forced her to orally copulate him and then forced her to engage in sexual intercourse with him. Following this act of sexual intercourse, Miss R was bleeding and had to use the bathroom. The man accompanied her to the bathroom and upon returning he again forced her to engage in an act of sexual intercourse. After this second act of intercourse, he covered Miss R’s face, dressed himself, tied her up and went to a dresser where he took some money from her purse. He inquired where her valuables and cameras were and she replied that she did not know. He said, “ ‘Well if I don’t find them, I will come back to you. ’ ’ ’

At 4:54 a.m. an officer at the Redwood City Police Department received a telephone call from a man who said, ‘ ‘ ‘ Take this down the first time. I am only going to tell you once. There is a girl at the ... [R] residence on Hardwick Road that is badly hurt and needs help. . . .’ ” Two deputies answered the call and in a bedroom they found Miss R tied hand and foot kneeling at the end of the bed. There were cuts about her face and breasts; her face, shoulders, breasts,

The “M” and “S” Counts

With respect to these counts, defendant was found guilty on seven and acquitted on two.^[3] The convictions were upon counts charging a violation of the following Penal Code sections: Count 8, section 209 (kidnaping for purpose of robbery) ; Count 10, section 209 (kidnaping for purpose of robbery); Count 12, section 261, subdivision 3 (rape) ; Count 13, section 286 (sodomy) ; Count 14, section 664 (attempted sex perversion) ; Count 15, section 211 (robbery); and Count 16, section 211 (robbery).^[4] The evidence adduced on these counts follows.

On the night of October 24, 1961, Mr. M and Miss S drove to the area of the Pulgas Water Temple in San Mateo County. When they were about to leave a masked man, wearing gloves and holding a gun, came running up to their car. He ordered Mr. M out of the car and locked him in the trunk. The man then drove the car for a while, and about this time he ordered Miss S to put her head down on his lap so she would not be seen. While they were driving, her skirt started to slip up and when she pulled it back down, be pulled it back up. When she attempted to pull it down again, he slapped her and told her not to do that again. He then pulled the car down into a dirt road and parked it, whereupon he blindfolded her. He forced her head down and tried to place his penis in her mouth but he failed because she clenched her teeth. He ordered her to remove her clothing and then forced her to engage in an act of sexual intercourse. He then told her to turn over on her stomach and tried to put his private parts into her rectum. Initially he did not succeed, but when he struck her on the back and she fell to a prone position, he was able to complete the act. After completing this act, he tied her wrists and ankles and gagged her, and then he got out of the ear. He took her purse and removed the money from it and some papers. The assailant

The “K” Counts

The jury found defendant guilty on three of these four counts.*^[5] The counts upon which he was convicted charged a violation of the following Penal Code sections: Count 17, section 459 (burglary ) Count 18, section 211 (robbery); and Count 19, section 261, subdivision 3 (rape).^[6] The pertinent evidence adduced with respect to the commission of these crimes is as follows.

About 4 p.m. on December 20, 1960, the doorbell to the K residence rang and Mrs. K went to the front door. A man at the door forced his way into the house and ordered both Mrs. K and her daughter, Miss K, into the den, where he forced them to lie face down and bound their hands behind them with adhesive tape. The man had a knife in his hand. He asked them for their money and was told by Mrs. K that it was in her purse. After he obtained the money, he returned to the den and drew the Venetian blinds and the drapes. In reply to his question Miss K told him she had some money in her purse in the kitchen. He then asked if there was any money in the bedroom, and when Mrs. K said no, he told them that if there were money there, they would be in trouble. Returning from the bedroom he said he found some money. He was holding two pillow cases which he put over their heads. The man then turned Miss K over on her back and when she screamed, he hit her. He pulled at her clothes and she lost consciousness. Mrs. K heard the struggle between her daughter and the man, and, upon hearing a dull blow, fainted. When Mrs. K regained consciousness the assailant was gone. A physician testified that at about 5 p.m. on December 20, he examined Miss K’s genital organs; that he found male spermatozoa in the upper vaginal area; and that there had been penetration of the vagina.

Applying the rationale of these cases to the case at bench, we conclude that the ruling of the trial court in permitting the joinder was within its discretion. The offenses charged in the indictment were not unrelated. To the contrary, they possess common elements of substantial importance. The element of intent to feloniously obtain property “runs like a single thread through the various offenses” (see People v. Chessman, supra, at p. 492) ; and aside from the C incident, the intent to satisfy sexual desires runs through all of the other occurrences. Moreover, the charges of rape, sex perversion and sodomy clearly belong to the same class of crimes, and the same is true of kidnaping, robbery and assault with a deadly weapon. Furthermore, all of these crimes are a form of assault and all are offenses against the person. (See Pen. Code, tit. VIII, §§ 187-260, ine.) As for the burglary, while it is classed as a crime against property (see Pen. Code, tit. XIII, §§ 447-455, inc.), as charged in the instant case it possesses a common element of substantial importance with the other offenses in that it is charged as having taken place with the intent to commit theft,^[7] robbery,^[8] rape,^[9] and assault.^[10]

Defendant asserts that “ [i] t would have been nearly impossible for the jury to have isolated the ... [M-S] case from the mass of facts that were presented and have come to a separate verdict.” This bald assertion is mere speculation and surmise in the absence of any showing of prejudice. A mere assertion of a fact does not prove it. (People v. Kemp, supra, 55 Cal.2d 458 , 477.) One who asserts prejudice because of a joint trial assumes the burden of proving it. {People v. Kemp, supra, at p. 477; People v. Duane, supra, 21 Cal.2d 71 , 78; People v. Northcott, 209 Cal. 639 , 648 [ 289 P. 634 , 70 A.L.R. 806 ].)

Was the Evidence Sufficient to Identify Defendant as the Perpetrator of the Offenses and to Connect Him With Their Commission f

Tes. Defendant does not challenge the sufficiency of the evidence as to each count to establish that the crime embraced therein was in fact committed by some person. He contends, however, that the evidence was insufficient to identify him as the perpetrator of any of the offenses or to connect him with their commission. It is defendant’s assertion that the evidence adduced tending to identify him as the perpetrator was vague and contradictory, and of such quality as to render it inadequate as a matter of law.

Apropos the question of identity, to entitle a reviewing court to set aside a jury’s finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all. {People v. Braun, 14 Cal.2d 1 , 5 [ 92 P.2d 402 ]; People v. Jackson, 183 Cal.App.2d 562 , 567 [ 6 Cal.Rptr. 884 ].) The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the quali-

Adverting to the record in the light of these principles, we conclude that the following evidence was of sufficient substantiality to warrant a finding by the jury that defendant was the perpetrator of the charged crimes: Miss E testified at the trial that she had identified defendant as her assailant from a lineup at the Hall of Justice in San Francisco on November 25, 1961, and when asked “do you see him here in the courtroom today?” answered, “Yes.” Upon being asked to point him out she stated “I can’t see very well, but I think that is him.”^[13] On cross-examination she testified that at the hospital, shortly after the incident, she was shown several photographs and that she had “pointed out several pictures that looked something like him but none that

Mr. M testified at the trial that he had attended a police lineup in San Francisco on November 25, 1961, and that he had there identified defendant as his assailant on the night in question. When asked if that person was then present in the courtroom he answered in the affirmative and pointed him out. Mr. M stated on cross-examination that on the night of the incident near the “Water Temple” he had viewed the assailant for approximately a minute. Testimony was also adduced that at the grand jury proceeding Mr. M was shown only one photograph, that of defendant, and that he had identified the person there depicted as his assailant “on the night in question.” Miss S also testified that she had attended the said lineup on November 25 and that she had there identified defendant by his voice and general appearance. When asked, “Do you see him in Court?” she replied “Yes,” and pointed him out.^[14] The evidence also showed that when she viewed the person she identified as defendant at the lineup she had stated to a police officer that it seemed to her her assailant’s actual features were larger, and particularly that his face and hands were larger.

Miss C, while on the witness stand, was asked if she could make a positive identification of the man who was in her home on December 19, 1960. When asked to look around the courtroom to see if she could she stated, “I think the man next to the attorney over there.” When queried, “That man next to Mr. Woodman on his left?” she replied, “Yes.”^[15] On cross-examination Miss C was asked, “In fact, Mr. Lindsay isn’t the man, isn’t that correct?” to which she replied “You are wrong.” She also testified on cross-examination that at a police lineup in San Francisco she had stated that defendant “wasn’t the man,” and that at the grand jury hearing, when shown defendant’s picture, she had said, “ ‘That is not the man.’ ” It should be here noted there was also evidence to the effect that a palm print found on a bedroom windowsill in the C home was identified as that of defendant. Regarding palm prints and fingerprints, the general rule is that they are the strongest evidence of identity of a person, and under the circumstances of a case may be alone sufficient to identify a defendant as a criminal. (People v. Atwood, 223 Cal.App.2d 316 , 326 [ 35 Cal.Rptr. 831 ]; People v. Buckowski, 37 Cal.2d 629 , 631-632] [ 233 P.2d 912 ]; People v. Adamson, 27 Cal.2d 478 , 495 [ 165 P.2d 3 ]; People v. Abner, supra, 209 Cal.App.2d 484 , 490; People v. Riser, 47 Cal.2d 566 , 589 [ 305 P.2d 1 ]; People v. Beem, 192 Cal.App.2d 207 , 211 [ 13 Cal.Rptr. 238 ].)

The factors emphasized by defendant on the issue of identity, namely, that the victims’ description of their assail -

Several material objects were received in evidence which tend to connect defendant with the commission of the offenses with which he was charged. These consist of a screwdriver, two gloves, a pillowcase, an automatic pistol, a cartridge clip, six cartridges, an expended cartridge, and two knives.

A screwdriver, which was found in a grip in defendant’s car, on November 19, 1961, and after his arrest, was admitted in evidence without objection. This tool was apparently introduced to connect defendant with the R crimes. Morris Grodsky, a criminologist, testified that the tool used to force open sliding doors at the R residence was a screwdriver, and that the markings on the door were made by the screwdriver found in defendant’s automobile. When defendant testified in his own defense, he explained the presence of marks made on the door by his screwdriver by stating that he had used it in an attempt to enter the R home on an occasion some two or three weeks prior to October 17, 1961.^[16] Miss R’s father testified that he had occasion to check the doors to his home shortly prior to October 17 because there had been an apparent entry into the home. It was his testimony that at that time there was no evidence of any damage to or tampering with any of the doors to the house, including the subject sliding doors. This conflict in the evidence was for the jury’s determination.

Insofar as the expended cartridge is concerned, it was not error to admit it in evidence. It was relevant to show that defendant had at some time been at the scene of the M-S crimes and that he was familiar with the general area. It was the prosecution’s theory, moreover, as indicated by argument in chambers, that the expended cartridge was left or dropped at the scene of the crimes in question. This theory was urged on the basis that defendant may have been in the habit of carrying or keeping expended cartridges on his person in view of testimony that other expended cartridges, although not of the same caliber, had been found in defendant’s apartment. In view of defendant’s subsequent testimony, while testifying in his own defense, that he “might have been by it or in that area during the day” and that if he did so, the gun in question would have been in his possession because it was in his car, and in view of his further statement that he had fired the gun in the Pulgas Water Temple area while demonstrating it to his girl friend five or seven weeks before his arrest, we fail to see how defendant was prejudiced by the admission of the expended cartridge. Again, the effect and value of such evidence, the weight to be given it, and the resolution of conflicts, if any, were for the jury. Assuming arguendo that it was error to admit the cartridge in evidence, we cannot say, after an examination of the entire cause, including the evidence, that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of such error. (People v. Watson, 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].)

Two knives were admitted in evidence over defendant’s objection. One of these, described as having a 7-inch blade, was found in the same grip as the screwdriver aforementioned. The objection to its admission was on the ground that “the identification is too general. ...” The overruling of this objection was proper. Prior to the court’s ruling, this knife, which had been marked for identification, was shown to Mrs. K while she was on the witness stand. She testified: “Yes, I would think the knife was very much like this.” Mrs. K had previously testified that the man who entered her home on the afternoon of the K occurrence had a knife in his hand.^[17] The rule of the

The other knife, described as a butcher knife, was found by police officers on the floor of the hallway outside Miss R’s bedroom when they responded to the call that a girl had been hurt at the R residence. The objection interposed to the admission in evidence of this knife was that there was no connection between it and defendant. The criminologist testified that the length of the blade on the knife was 10 inches long and that he found some blood on the tip of the blade and a small amount on the knife’s handle. The officers testified that when they found Miss R she had cuts and lacerations about her shoulders and breasts, and much blood about her body. Miss R testified that her assailant held a knife in his hand when he entered her bedroom. We are satisfied that, in the light of this evidence, the jury was entitled to infer that the subject knife was the one used by Miss R’s attacker. While it is true that Miss R testified that the knife held by her assailant looked like a “hunting knife” and that she had so stated to the police, the conflict, if any, was for the jury's determination. Defendant’s objection went to the weight of the evidence rather than to its admissibility. It should be here noted that Miss R also stated “ ... I am not sure exactly what hunting knives look like. That was just my impression of it. ’ ’^[18]

Defendant argues that the admission of the butcher knife violated the rule of the Riser ease because the prosecution had contended that the other knife was the weapon wielded by the assailant. Defendant misconstrues the facts. The knife found in the car was introduced in evidence in relation to the K counts, while the butcher knife was presented in connection with the R counts. There is nothing in the cases to the effect that the prosecution is restricted to presenting only one weapon where, as here, the indictment charges several separate offenses unconnected in their commission.

Was There Error in the Manner in Which the Jury’s View of the Scene Was Conducted?

No. It is defendant’s contention that his constitutional rights were violated by the manner in which the jury’s view of the R premises was conducted. He asserts that

The facts giving rise to this objection are as follows: Defendant requested that the jury be afforded a view of the B premises. At the B residence, defendant was some 100 yards away, outside the house and in a sheriff’s ear with three law enforcement officers. At this time the jury was inside the B house where Miss B made a momentary appearance but the record reflects that there was no contact nor mingling between the jurors and Miss B. It is this separation which is the basis of defendant’s claim of error. The record does not indicate that defendant or Ms counsel made any objection to the manner in which the view was conducted either at the time or after the return to the courtroom.^[20] It also appears from the record that defendant’s counsel was aware of this possible objection at the time he stipulated that defendant was present at the view.^[21] However, defendant did not object

Assuming, however, that implicit in the remarks of defendant’s counsel there is an objection to the procedure, we perceive no error. The record shows that the jury was informed as to the proper deportment expected of it by the law when viewing the scene. The record also showed that the court, counsel, defendant, and jury retired to the R premises and returned therefrom. As to the contention that Miss R mingled with the jurors in the house while defendant was outside, the court’s remarks show that at the most the jury caught a brief glimpse of Miss R but that there was no contact or mingling between Miss R and the jury. As to defendant’s separation from the jury, it is evident that defendant was about the R premises but not in the immediate presence of the jury in the house. He had a view of the premises and could observe the activities of the jury to a substantial degree. We cannot say, therefore, under the circumstances,

Was There Error in the Court’s Instructions Relating to the Charge of Kidnaping for the Purpose of Robbery?

Yes. Defendant’s contention in this regard is that the evidence fails to show that he had a specific intent to commit robbery under the counts which charged him with kidnaping for the purpose of robbery. (Pen. Code, § 209.) Defendant further claims that the assailant’s whole effort was devoted to gratifying his sexual desires, and that the robbery was merely an afterthought.

The court gave abundant instructions to the jury concerning the intent requirement for this kind of crime. In its instructions the court included the following: “You are instructed that it is unnecessary to determine whether the kidnaper intended to commit robbery at the time of the original seizure and carrying away. It is sufficient if you find that a robbery was committed during the course of the abduction. Thus, whatever may have been the original motive of the kidnaping, if the kidnaper commits robbery during the kidnaping he ‘carries away’ his victim ‘to commit robbery’ within the meaning of Section 209 of the Penal Code. ...” This instruction was apparently given under the authority of People v. Brown, 29 Cal.2d 555 [ 176 P.2d 929 ], and People v. Knowles, 35 Cal.2d 175 [ 217 P.2d 1 ], In Knowles the Supreme Count stated that there is no condition that robbery be premeditated as a part of a kidnaping for the purpose of robbery, and in Brown the court affirmed the death penalty on the ground that the taking of the victim’s purse, wristwatch and automobile made the abduction kidnaping to commit robbery, even if the original objective was rape and the intent to rob was only an afterthought.

An instruction similar to one in the instant case was held to have been so prejudicial as to require a reversal in the recent ease of People v. Smith, 223 Cal.App.2d 225 , 233-234 [ 35 Cal.Rptr. 719 ].)^[23] The only perceptible difference between the

We agree with the interpretation placed by Smith upon section 209. We are satisfied that when the Legislature, in 1951, inserted the words “or any person who kidnaps or carries away any individual to commit robbery” (italics added) in said section, it was the legislative intent that robbery be premeditated as part of the kidnaping. The phrase “to commit robbery” obviously means with the intent or purpose of committing a robbery. We are therefore persuaded that the holding of the Smith case applies in the ease at bench. The instruction in the instant case clearly told the jury that even if the intent to rob was formed after the asportation the crime of kidnaping for the

The Motion to Strike Defendant’s Interrogatories.

Defendant claims that the trial court committed error when it granted the motion of the People to strike all written interrogatories proposed by defendant. The proposed interrogatories have not been made a part of the record on appeal. We therefore have no way of knowing their nature and purport.^[25] It is an appellant’s duty to point out error and to perfect his record on appeal. (Kyne v. Eustice, 215 Cal.App.2d 627 , 634-635 [ 30 Cal.Rptr. 319 ]; Estate of Hoffman, 213 Cal.App.2d 635 , 639 [ 29 Cal.Rptr. 60 ].) Moreover, it is well established in this state that an appellate court will not consider assignments of error based upon asserted matters not shown by the record and supported by nothing more than statements in an appellant’s brief. (People v. Barnhill, 185 Cal.App.2d 645 , 652 [ 8 Cal.Rptr. 548 ] ; People v. Boyden, 181 Cal.App.2d 48 , 55 [ 4 Cal.Rptr. 869 ]; People v. Hernandez, 150 Cal.App.2d 398 , 402 [ 309 P.2d 969 ]; People v. Villarico, 140 Cal.App.2d 233 , 236 [ 295 P.2d 76 ].) All that the record shows in the instant case is that the trial court granted the People’s motion to strike defendant’s interrogatories, and nothing more. The broad discovery provisions of the Code of Civil Procedure are limited to civil cases and have no applicability to criminal cases. (Clark v. Superior Court, 190 Cal.App.2d 739 , 742 [ 12 Cal.Rptr. 191 ].) In criminal cases, the Legislature permits the taking of depositions and interrogatories in the following situations: nonresident witness to be examined (Pen. Code, § 1349); witness about to leave the state or who is sick or infirm (Pen. Code, § 1336); and conditional examination of witness (Pen. Code, § 1335). In addition liberal discovery rules have been invoked in California by the decisions. Thus in a proper case, one charged with a crime may, before trial, inspect: statements of his own in possession of the prosecutor, whether signed, unsigned, or on recording tapes; real evidence or reports of state officers’ examination thereof; statements of persons expected to be prosecution witnesses at trial; and names and addresses of eyewitnesses