People v. Shaw

Defendant appeals from the judgment of the trial court sentencing him to state prison for the term prescribed by law for forcible rape in violation of subdivision 3 of section 261 of the Penal Code. The defendant was convicted of this offense and of robbery in the second degree in violation of section 211 of the Penal Code following trial by jury, but the latter conviction was set aside on motion of the district attorney on the grounds that further proceedings on that charge would subject the defendant to double punishment. On his arraignment on an amended information the defendant, in addition to entering a plea of not guilty to each of the foregoing charges, had admitted allegations which charged that he had a prior conviction of robbery in 1957 and a prior conviction of kidnapping in 1959, and that he had served a term of imprisonment for each in the state prison.

Defendant attacks the ruling of the trial court in limiting him to 10 peremptory challenges, its rulings on the admission of evidence, the manner in which it instructed the jury, and asserts allegedly prejudicial misconduct on the part of the prosecutor.

The victim testified she was robbed and criminally assaulted at about 1:30 a.m. on December 8, 1963, in a parking lot as she was about to drive home. She identified defendant as the perpetrator following his apprehension within an hour of the alleged attack, again at a police lineup on December 9th, and finally at the trial.

The defendant claimed that he was elsewhere at the time of the alleged assault and produced witnesses who generally corroborated the activities recited by him, but left him unattended going from one cafe to another restaurant at about the time in question.

The remaining facts surrounding the occurrence insofar as they bear on the issues raised by appellant are hereinafter set forth.

The Alleged Error in Disallowing More Than Ten Peremptory Challenges

After the defendant had exercised nine peremptory challenges and had examined a juror seated to replace one whom had been excused by the court for cause, and after the People had expressed satisfaction with the jury as constituted, the court stated: “What says the Defendant? This is your last challenge Mr. Larson. ’ ’ The defendant excused the juror, and thereupon a new juror was sworn and examined by both sides.

The question presented by the sentences for the principal offenses—not less than three years for rape (Pen. Code, § 264) or not less than five years, or one year, for robbery (Pen. Code, § 213) came before the court in People v. Clough (1881) 59 Cal. 438 under similar provisions of section 1070 as it read prior to its amendment in 1927. The court stated: “It is claimed on this appeal, that robbery is punishable for life; that the defendant was entitled to twenty peremptory challenges, and that the Court erred in its ruling. The section in question has never received a judicial interpretation, and the point is a new one. We are called upon to decide it without precedent or authority to aid us. ‘If the offense charged is punishable with death or with imprisonment in the State Prison for life, the defendant is entitled to twenty peremptory challenges.’ Such is the language of the section now under consideration. We have reached the conclusion that it is only in capital eases, or cases in which a life sentence is in terms affixed by the Legislature as the punishment of the crime, that the defendant is entitled to twenty peremptory challenges. Bobbery is not such a crime. It is true that the maximum punishment is not designated by the statute, but the Tninirmim iS; and that need not be for a longer time than one year.” (59 Cal. pp. 441-442.) This principle, although questioned on occasion, has been uniformly followed in this state. (People v. Riley (1884) 65 Cal. 107 , 108 [ 3 P. 413 ] (robbery) ; People v. Fultz (1895) 109 Cal. 258 , 259 [ 41 P. 1040 ] (rape); People v. Logan (1899) 123 Cal. 414 , 416 [ 56 P. 56 ] (rape) ; People v. Sullivan (1901) 132 Cal. 93 , 94 [ 64 P. 90 ] (burglary) •

“We can see no merit in the claim that the law does not prescribe the maximum penalty for the crime of robbery. The maximum penalty ‘prescribed by the law’ is the extreme penalty that the law authorizes to be imposed—that is, life imprisonment in the present case, as we have seen.

“The two sections of the Penal Code may be read together and they amount to this: ‘Robbery is punishable by imprisonment in the state prison not less than one year and it may be for life. ’ ” (36 Cal.App. at p. 784.)

This interpretation is not necessarily inconsistent with the authorities which hold that a prisoner who may receive a maximum punishment of a life sentence may be treated as undergoing such until a sentence is fixed at a lesser term (Harmon and Larsen, supra), or cases which hold that a conviction which subjects the offender to a possible life sentence carries the possibility of greater punishment than one with a fixed term, and the latter must therefore yield to the former if double punishment would violate the provisions of section 654 of the Penal Code. (Bales, Collins and Aldridge, supra.)

In People v. Ralph (1944) 24 Cal.2d 575 [ 150 P.2d 401 ], the court had to determine the meaning of the term “sentenced to . . . imprisonment for life” as used in the Youth Authority Act. (Welf. & Inst. Code, § 1700 et seq., particularly § 1731.5, subd. (b).) The court noted the apparent conflict between the principle asserted by defendant herein, and that contained in Clough and its progeny, and observed: ‘ ‘ The two lines of decisions hereinabove discussed are obviously conflicting insofar as their analogous application to the question involved in the cases of these appealing defendants is concerned. This, however, does not mean that either line need be overruled in order to dispose of the pending cases. Bach line has become established over a long period of years as defining the law in the particular matters to which it respectively relates. The question before us is not one which is necessarily concluded by either of the two series of holdings. It is proper, therefore, in reaching a conclusion, to consider the purpose of the particular statute and certain fundamental rules governing the construction of criminal laws generally.” (24 Cal.2d at p. 580.)

The precept that each reference to life imprisonment must

Quinn recites that: “There is no merit in petitioner’s contention. Certainly an indeterminate sentence without a fixed maximum is regarded for certain purposes as having the effect of a life sentence until and unless the prison term board has acted and fixed a term for years. (People v. Ralph (1944) 24 Cal.2d 575 , 578 [ 150 P.2d 401 ]; People v. Jones (1936) 6 Cal.2d 554 , 556 [ 59 P.2d 89 ]; People v. McNabb (1935) 3 Cal.2d 441 , 456-457 [ 45 P.2d 334 ]) but this proposition of law does not preclude our recognizing the reality that, in the absence of action by the board, an indeterminate sentence is an indeterminate sentence. It is neither a life sentence nor a fixed term sentence; it is entitled to recognition as a distinct species inteligibilis. The fact that for some purposes it has the legal effect of a life sentence does not mean that it must be regarded as the equivalent of a life sentence for all purposes. (People v. Ralph (1944), supra, at pp. 578-582 of 24 Cal.2d.) A defendant against whom such a judgment has been pronounced may or may not be required to spend the entire term of his natural life in prison.” (25 Cal.2d at pp. 800-801.)

Kostal establishes that an indeterminate sentence with a maximum term of life imprisonment did not become “life imprisonment” within the meaning of section 669 because of the amendments to section 671 of the Penal Code in 1951 (Stats. 1951, ch. 1674, p. 3829) which recast it to read: “Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, punishment of such offender shall be imprisonment during his natural life subject to the provisions of Part 3 of this code. ’ ’

It is concluded that the right to 20 peremptory chai

Attention is therefore directed to the question of whether or not defendant in fact was subject to “imprisonment in the state prison for life” under the provisions of Penal Code section 644, subdivision (a), at the time the jury was selected for his trial on the charges which are the subject of these proceedings. The availability of the sentence data on the prior charges makes it unnecessary to consider whether the allegations of the amended information would fail to sustain sentencing as an habitual criminal because of a lack of allega

Defendant has further requested us to take judicial notice that as a condition of probation on the earlier prior conviction, he was ordered to spend 12 months in the county jail. Jail time cannot be considered as a term served under section 644. (In re Wolfson (1947) 30 Cal.2d 20 , 26 [ 180 P.2d 326 ]; In re Gardo, supra, 108 Cal.App.2d 615 , 616.) The service of that probationary jail sentence cannot therefore make separate what are otherwise concurrent prison terms. The statute is generally designed to provide increased penalties for recidivists (see In re McVickers (1946) 29 Cal.2d 264 , 270 [ 176 P.2d 40 ]), but it appears to be particularly drafted to depend on the offender’s demonstrated immunity to separate punishments which have been imposed for prior offenses, rather than on the mere prior convictions themselves. It is therefore fitting that time spent in serving overlapping concurrent sentences be deemed one term, regardless of what may be the effect of time served on such sentences severally where the overlap is not, as here, complete.

Prom the foregoing it is clear that defendant at the time the jury was impaneled was not subject to possible “imprisonment in the state prison for life” under the provisions of section 644, subdivision (a), of the Penal Code, if convicted of either or both of the charges of which he stood accused. It is therefore unnecessary to determine whether such a status would entitle him to 20 peremptory challenges, or whether or not he waived any right to assert this contention by failure to assert it in the lower court.

Defendant attempted to exercise an eleventh peremptory challenge in spite of the fact that prior to the exercise of

These facts might be used to show possible prejudice if error had been committed in denying an authorized peremptory challenge. (See Const., art. VI, § 4½; but cf. People v. Diaz, supra, 105 Cal.App.2d 690 , 696, indicating prejudice as a matter of law in such event.) Under the circumstances of this case they do not of themselves, as asserted by defendant, demonstrate that he was denied a fair trial, and is therefore entitled to a reversal. No attempt was made to show actual bias on the part of the juror and the facts stated do not constitute implied bias (cf. Pen. Code, § 1074; and see People v. Wilkes (1955) 44 Cal.2d 679 , 685 [ 284 P.2d 481 ]). Furthermore, as noted above, the juror in question as well as the juror in respect of whom defendant exercised his tenth challenge were both in the box when the tenth challenge was exercised after the judge’s admonition. To relieve a party of his mistake, if it be such under circumstances such as this, would be to invite such tactics in the future on a more calculated basis.

There was no error in connection with the impanelment of the jury.

Alleged Errors in the Admission of Evidence

Appellant states, ‘ The trial court erred in admitting against appellant evidence illegally obtained and illegally searched.”

(A) It is first alleged that defendant was arrested without probable cause.

The evidence reflects that following a report by the victim, a description was broadcast. An officer of the Richmond Police Department saw defendant, who answered the description, and another man walking on a street in the neighborhood. He asked the defendant for identification and detained him until another officer who had interviewed the victim could arrive. When the latter came on the scene, he asked the defendant to show his money. It included 14 pennies which were the same number of pennies which the victim had reported had been taken from her. The defendant was requested to accompany the officers to confront the complainant.

For the foregoing reasons it cannot be said that his subsequent identification by the victim on that evening, and at a subsequent lineup, or the use of tests disclosing seminal stains on the' shorts taken from him after his arrest, were the product of an illegal arrest. (Cf. Mapp v. Ohio (1961) 367 U.S. 643 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , 84 A.L.R.2d 933 ]; Ker v. California (1963) 374 U.S. 23 [ 83 S.Ct. 1623 , 10 L.Ed.2d 726 ]; Wong Sun v. United States (1963) 371 U.S. 471 [ 83 S.Ct. 407 , 9 L.Ed.2d 441 ]; People v. Cahan (1955) 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ]; Stoner v. California (1964) 376 U.S. 483 [ 84 S.Ct. 889 , 11 L.Ed.2d 856 ]; Fahy v. Connecticut (1963) 375 U.S. 85 [ 84 S.Ct. 229 , 11 L.Ed.2d 171 ].)

(B) Secondly, it is contended that evidence of his confrontation with the complainant was improper because defendant was not represented by counsel or advised of his right thereto. (See Gideon v. Wainwright (1963) 372 U.S. 335 [ 83 S.Ct. 792 , 9 L.Ed.2d 799 , 93 A.L.R.2d 733 ]; Escobedo v. Illinois (1964) 378 U.S. 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].) Defendant makes a plausible argument to the effect that if a suspect needs counsel before being interrogated he needs the advice of counsel to insure that he is identified under circumstances which are free from passion and emotion, and in a neutral environment. He urges a blanket condemnation of identification by the victim on the street, or at the scene. Such a proposal not only goes beyond existing decisions concerning the right to counsel, but offends the suggestion made in People v. Mickelson, supra, 59 Cal.2d

(C) He further asserts that his underwear was illegally seized, and that in any event it should not have been subjected to tests without a search warrant.

The seizure of the underwear, in view of the nature of the offense charged, was justified as would be the seizure of a blood-stained shirt tending to connect a person with an offense in which blood had flowed. (See People v. Teale (1965) 63 Cal.2d 178 , 190 [ 45 Cal.Rptr. 729 , 404 P.2d 209 ].) The fact that the evidence was not taken from the person of the defendant until arrival at the police station, presumably for reasons of modesty, does not make the search and seizure at a place remote from the arrest. The right to seize arose at the time of the arrest, it was effected by the seizure of defendant and his clothes, and the subsequent separation of the defendant and the seized garments does not make the seizure and retention of the latter illegal.

Defendant relies upon United States v. Lefkowitz (1932) 285 U.S. 452 [ 52 S.Ct. 420 , 76 L.Ed. 877 , 82 A.L.R. 775 ]; and Gouled v. United States (1921) 255 U.S. 298 [ 41 S.Ct. 261 , 65 L.Ed. 647 ], for the principle that neither a legal arrest nor even a search warrant will justify the seizure and use of materials which are merely evidence, as distinguished from contraband, fruits of the crime, or means and instrumentalities of the crime. (See Morrison v. United States (1958) 262 F.2d 449 , 451.) It is unnecessary to determine to what extent this rule is dependent on the Fifth Amendment of the United States Constitution, or on principles prohibiting indiscriminate searches or seizures, or to what extent it is applicable in this state. In Preston v. United States, 376 U.S. 364 [ 84 S.Ct. 881 , 11 L.Ed.2d 777 ], it is recognized in the unanimous opinion of the court that, ‘ ‘ The rule allowing contemporaneous

The evidence having been legally seized its subsequent examination and analysis does not offend any constitutional principles. Preston v. United States, supra, 376 U.S. 364 and People v. Burke, 61 Cal.2d 575 [ 39 Cal.Rptr. 531 , 394 P.2d 67 ] involve searches of articles which were not properly seized. It is unnecessary to determine whether analysis constitutes a search, because, as noted above, the material analyzed was properly in custody of the law.

It is concluded that there was no error in the receipt of the evidence referred to in the foregoing.

Alleged Errors in the Instructions

(A) Defendant would predicate error on the reading of an instruction, admittedly correct, concerning the effect of defendant’s prior felony convictions on his credibility, separate and apart from other instructions concerning credibility. He asserts that undue emphasis and weight thereby were given to those prior convictions. The court did instruct the jury that they were “not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions and as a whole, and to regard each in the light of all the others.” (See CALJIC No. 5.) It is presumed that the jury followed this instruction. (People v. Robles (1962) 207 Cal.App.2d 891 , 897 [ 24 Cal.Rptr. 708 ].) No error is apparent.

(B) A former victim of the defendant testified that about five years earlier he had attempted to rape her under circumstances and in a manner which were similar to those under consideration. Defendant offered an instruction setting forth six purposes for which evidence of another offense could be considered. (CALJIC No. 33.) The court’s instructions only referred to consideration for one of these purposes— plan, scheme, or design. Defendant refers to People v. Lindsay (1964) 227 Cal.App.2d 482 , 504-505 [ 38 Cal.Rptr. 755 ] as requiring that the jury consider the evidence for more than one purpose, and claims that the court’s instruction here deprived him of a jury trial. (See People v. Costello (1943)

(C) The court gave the standard cautionary instruction concerning the evidence of a prosecutrix in a rape case. (See People v. Nye (1951) 38 Cal.2d 34 , 40-41 [ 237 P.2d 1 ]; People v. Putnam (1942) 20 Cal.2d 885 , 890 [ 129 P.2d 367 ].) Defendant contends a separate instruction of the same ténor should have been given in relation to the testimony of ihe prior victim. No such instruction was requested. The charge given was general in terms and may be interpreted as allowing reference to it in order to attack the credibility of the prior victim if such tactic were desired. It is unnecessary to determine whether or not such an additional cautionary instruction should be given if offered. On the record here no error .is shown by the failure of the lower court to give a second cautionary instruction on its own initiative.

Alleged Misconduct of the Prosecutrix

(A) At the conclusion of the closing argument the deputy district attorney stated: ‘1 The Judge, I believe, will tell you that the matter of penalty has no place in your deliberations in this case. And, I would urge you, please, to disregard any question of what may happen to this D. iendant —in the event that you should, please God, convict him. And, I say this sincerely, Ladies and Gentlemen. Take this man off our streets.” Defendant asserted, “Your Honor, that’s á very prejudicial statement, and has no place in this courtroom,” and the court commented: “She has the right to make this argument. Go ahead,...”

Defendant asserts that the comment was improper because it implied that defendant would rape again if acquitted (see People v. Whitehead (1957) 148 Cal.App.2d 701 , 705-706 [ 307 P.2d 442 ]; and People v. Sorenson (1964) 231 Cal. App.2d 88 , 91-92 [ 41 Cal.Rptr. 657 ]); and that the use'of the phrase “please God” was an improper appeal to the passion and prejudice of the jury (cf. People v. Talle (1952) 111 Cal.App.2d 650 , 673 [ 245 P.2d 633 ]). The language, “Take this man off our streets” when taken alone is subject to the

(B) In the course of her closing argument the attorney for the People addressed herself to the defendant’s contention that the victim, who admittedly had been drinking during the course of the evening, was too intoxicated to recognize her attacker and subsequently identify the defendant as such. After commenting on some of the evidence bearing upon her sobriety, or lack of it, the attorney stated: “She couldn’t identify him.—She was too intoxicated.—This has to be a wrong identification.' This is really the meat of this case—the heart of this case, Ladies and Gentlemen. Now, I have never been subjected to a situation like this, which Mrs. Igo had referred to—but I would think that the spectre of this man, forcing himself into my car and on top of me, would sober me up so fast—the adrenalin in my system would completely compensate for whatever alcohol was in it—the fear. And, you can use your common sense as to whether or not this could happen.” Defendant, despite lack of objection below, contends that the foregoing, with the exclusion of the last sentence, assumes facts not in evidence, was an improper statement of the personal opinion of the prosecuting attorney,

There was no evidence in this case concerning the effect of fear upon a person’s sobriety either with or without a reaction of the adrenalin in the system. Nevertheless the argument that fear may have an effect on the perception of one whose senses were otherwise dulled by alcohol does not appear to pass the bounds of common understanding. Insofar as it was made personal, the attorney did not profess knowledge, but rather lack of such an experience. The use of the first person really refers to a hypothetical intoxicated woman in the victim’s situation. The attorney’s sex permitted a personal reference, rather than a more discreet use of the third person as would have been required in the use of the same example by a male prosecutor. Nevertheless any alleged appeal to passion or prejudice from this incident is no greater than that inherent in entrusting the prosecution of an offense of this nature to an attorney of the same sex as the victim. To find error in such practice would necessitate depriving women of the rightful place they have earned for themselves in the professions through years of struggle. There is nothing unfair or prejudicial in the argument made, and the appeal to the jurors to use their common sense demonstrates a lack of intention to inflame or prejudice their minds. “The prosecutor has a wide range in which to state his views as to what the evidence shows and as to conclusions to be drawn therefrom.’’ (People v. Burwell (1955) 44 Cal.2d 16 , 39-40 [ 279 P.2d 744 ]; and see People v. Guthaus (1962) 208 Cal. App.2d 785 , 793 [ 25 Cal.Rptr. 735 ].)

There was no error in the remarks of the prosecuting attorney.

The judgment is affirmed.

Sullivan, P. J., and Molinari, J., concurred.

A petition for a rehearing was denied November 15, 1965, and appellant’s petition for a hearing by the Supreme Court was denied December 15, 1965.