People v. Pacheco

A jury convicted defendant of three counts of first degree burglary, three counts of assault with intent to commit rape, and three counts of assault with a deadly weapon. Probation was denied, and defendant was sentenced to the state prison—-the terms imposed on two of the burglary counts were ordered to be served consecutively, and the terms on the remaining counts, concurrently. He appeals from the judgment.

There are 16 assignments of error. In addition to the 'asserted insufficiency of the evidence to support the finding of guilt as to each count and the inadmissibility of items of evidence received against him, defendant challenges the validity of certain procedures taken during the pendency of the trial and thereafter. As to this latter claim, the record reveals the following : After the entry of his plea, defendant moved that the criminal proceedings be suspended until an examination was had to determine his sanity (Pen. Code, §§ 1367,1368); having been found after such examination to be then presently sane, the criminal proceedings were ordered resumed, thereafter

In light of defendant’s claim of the insufficiency of proof that he committed the offenses charged, we summarize the evidence adduced at the trial. The victims of the felonies charged in the indictment were three women residing in the Monteeito area of Santa Barbara. The first of these women, Mrs. J. P., was awakened at about 2:15 on the morning of June 2, 1964, by a man who had apparently jumped onto her bed. When she retired, about four hours earlier, the doors to her apartment were locked. The man stabbed her in the face with some sort of object, telling her that he had a knife. (Later she felt the instrument which she assumed was a screwdriver.) He also told her that he would kill her if she did not remain quiet and remove her pajamas. There was a struggle, and the man practically smothered her to prevent her screams. He demanded that she put her hands on his exposed body, threatening to stick the instrument in her throat if she did not comply. Eventually his private parts touched hers, but there was no penetration. When she continued to scream, the man ran away. There was sufficient lighting from a flood light located just outside the bedroom window that she got a good look at the man; at the trial she identified defendant as her assailant.

Following the man’s departure, the victim’s purse and its contents were missing. When the police were called, an officer examined the apartment and its surroundings. Scuff marks were found on the wooden fence surrounding the patio ■ plants were beaten down as though somebody had jumped over the fence; there was a tennis shoe footprint in an area of wet dirt; the sliding glass door (on which there were smudges) and screen appeared to have been forced open. Later a police technician removed a partial palm, print from the glass door and photographed certain footprints.

The second victim, Mrs. A. W., retired early on the morn

The third victim, Mrs. M. W., was awakened early on the morning of June 23, 1964, by a man approaching her bed. When she screamed, the man told her that he had a knife and would run it through her throat if she did not remain quiet. (Later she determined that the instrument was a screwdriver.) After he unbuttoned his trousers, he demanded that she touch his private parts; he also attempted, but did not accomplish penetration. After he left, the victim discovered that her purse and some money were missing. There was a night light in the victim’s bedroom, and she was able to observe her assailant’s appearance. She picked him out at a police lineup and identified him at the trial.

As in the instance of the other victims, footprints were observed by police outside the apartment; there was also a smudged footprint on a bedsheet. They were photographed, and the bedsheet was taken into possession by the police.

Evidence of offenses not charged in the indictment was received. In an early mid-August morning of 1964 a Mrs. V., likewise residing in Montecito, was aroused from her sleep by a man who put something over her face and an arm over her throat. After fighting with the man, she was able to reach a gun in a box beside her bed. After telling her that he would leave if she did not shoot, the man departed. Later a screwdriver was found beneath the bed. There was sufficient lighting in the room that Mrs. V. was able to identify defendant at the trial. Earlier, in late January of 1963, a Mrs. S., residing in San Jose, was molested by an intruder who awakened her at about 2 a.m. Holding a sharp instrument at her throat, he com

The following circumstances led to defendant’s arrest: Late in the evening of August 21, 1964, Detective Strong was on stake-out duty in the rear of a house on Palm Tree Lane which, in turn, is adjacent to the apartment occupied by Mrs. P. (the first of defendant’s victims) in the Montecito area. He saw a man carrying a flashlight with a red rim around the lens; although the man was told by Strong that he was a police officer and ordered to stop, he sprang to the top of a fence. After again being informed by Strong that he was a police officer and ordered to halt, the man jumped from the fence and Strong fired one shot. Patrolman Reid, who was in the immediate neighborhood, heard noises and lights from the area just mentioned; he also heard a shout: ‘1 Stop that man, he is a burglar. ’ ’ After Reid positioned himself and drew his weapon, he saw a man in the beam of his flashlight. Reid ordered the man to halt; when the latter complied, he dropped a flashlight he was carrying. Reid was able to identify the man as defendant. Suddenly defendant sprinted away from Reid who fired two shots, one toward defendant’s legs. Later that evening the police found a car parked on Palm Tree Lane; there was evidence that it belonged to defendant’s mother and was occasionally used by him. Shortly after midnight, the police proceeded to 310 South Canada Drive to investigate reports of a prowler; the above address, it developed, was where defendant resided along with his parents. He was found on a rear porch in his stocking feet and appeared to have a bullet wound in his right leg. An ambulance was called and defendant taken to a hospital. Bloody footprints were subsequently observed in the driveway of the Canada address and on the steps to the porch.

Thereafter the following incriminating evidence was secured: With the consent of defendant’s mother, a search was made of defendant’s bedroom; a pair of rippled soled shoes was found and taken into possession. Thereafter the- police

Defendant did not testify. With certain exceptions, the only defense testimony appears to have been introduced in an effort to establish an alibi.

The first assignment of error challenges the sufficiency of the evidence to support the jury’s verdict; specifically, the proof is said to be insufficient as a matter of law. Singled out •are items of the victims ’ testimony, particularly as to the identity of their assailant, which assertedly are at variance with his participation in the incidents complained of. Defendant also attacks the credibility of expert testimony regarding his footprints and the several points of similarity noted by the fingerprint expert. There is no merit to this line of argument, since “The rule is firmly established that before a judgment can be set aside on the ground of the insufficiency of the evidence it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.” (People v. Alonzo, 158 Cal.App.2d 45 , 47 [ 322 P.2d 42 ].) It is also the law that unless the identification of a defendant by the victim of a crime is inherently improbable or incredible as a matter of law, a jury’s verdict based thereon cannot be properly set aside by an appellate court. (People v. McLaine, 204 Cal.App.2d 96 , 104 [ 22 Cal.Rptr. 72 ].) Accordingly, in the present ease the verdict is supported by the following reasonable hypotheses: Bach victim named in the indictment was able to identify defendant, either visually or by his voice; each was threatened by a srewdriver, all victims so testifying; the circumstances of each offense were similar in several respects, entry to a private residence in the very late evening or early hours of the morning by an intruder who intended sexual assault. Too, there was a definite behavior pattern in defendant’s criminal modus operands; this is established by the San Jose victim who positively identified defendant as her assail

Error is urged with respect to the receipt in evidence of several exhibits offered by the People. The first three were maps used by a police officer to illustrate his testimony. Preliminarily, the use of maps for the above purpose has been sanctioned (People v. Kynette, 15 Cal.2d 731 , 757 [ 104 P.2d 794 ]), and the proper foundation is laid, as in the ease of films or photographs, by a showing that they represent what they purport to show. (Cf. People v. Bowley, 59 Cal.2d 855 , 859 [ 31 Cal.Rptr. 471 , 382 P.2d 591 , 96 A.L.R.2d 1178 ].) The first map (Exh. 37) depicted a blood trail followed by the witness; after voir dire examination by defense counsel, his objection was withdrawn. The next drawing (Exh. 48) related to the general area where certain of the offenses were committed; it was received in evidence without objection. The third map (Exh. 42) depicted the area near defendant’s home, illustrating another blood trail followed by the witness and the location of defendant’s tennis shoes. There was voir dire examination by both sides before the exhibit was received. We cannot say that the trial court abused its discretion in determining that a sufficient foundation had been laid for this third exhibit’s admission. Seven additional exhibits, being articles of defendant’s clothing obtained by the police at the hospital, were likewise admitted; and it is now contended that they were obtained by means of an illegal search and seizure. The objection comes too late, since there was no objection at the trial to their admission on such grounds. “A failure to object to the introduction of evidence which defendant alleges was illegally obtained precludes the successful presentation of the issue at the appellate level.” (People v. Hyde, 51 Cal.2d 152 , 157 [ 331 P.2d 42 ].)

Citing Malloy v. Hogan, 378 U.S. 1 [ 12 L.Ed.2d 653 , 84 S.Ct. 1489 ], appellant challenges the constitutionality of sections 1367 and 1368, Penal Code, the provisions of which were invoked by him prior to the criminal trial; he says they contravene the Fifth Amendment privilege against self-incrimination which is applicable to the states through the due process clause of the Fourteenth Amendment. Defendant was

Since defendant voluntarily withdrew his pleas of not guilty by reason of insanity, there is likewise no merit to the next contention that he did not intelligeiitly and voluntarily waive his right to a jury trial as to such issue. The record fully supports respondent’s position that the withdrawal of the subject pleas was personally consented to by defendant in open court with his counsel present after due inquiry by the court as to his desires in the premises. Under the circumstances just mentioned, any discussion of defendant’s further claim that section 1026 of the Penal Code, relating to pleas of insanity and the presumption of sanity by a person so pleading is unconstitutional, becomes unnecessary. In passing we note, however, that the constitutional infirmity assertedly infecting section 1026 lies in its requirement that insanity must be established by a preponderance of the evidence; but it has been held that it is not unconstitutional to put a criminal defendant to a greater burden, namely, the establishment of his insanity beyond a reasonable doubt. (Leland v. Oregon, 343 U.S. 790 [ 96 L.Ed. 1302 , 72 S.Ct. 1002 ].)

It is urged that a police officer’s testimony during the present sanity proceeding under section 1367-1368 of the Penal Code violated the constitutional rules set forth in Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], and People v. Dorado, 62 Cal.2d 338 [ 42 Cal. Rptr. 169 , 398 P.2d 361 ]. Without objection the officer was permitted to testify as to an exculpatory statement by defendant explaining the wound in his ankle which, according to defendant, was sustained under circumstances different from those

Additional assignments of error involving the admission of evidence relate to (1) defendant’s palm prints, (2) the prior consistent identification of defendant at a police lineup, and (3) a flashlight and screwdriver. As to (1) and (3), the evidentiary items were admitted without objection and the objection comes too late. (People v. Saldana, 233 Cal. App.2d 24 , 33 [ 43 Cal.Rptr. 312 ].) As to (2), the procedure criticized is in accord with accepted trial practice. (People v. Gould, 54 Cal.2d 621 , 626 [ 7 Cal.Rptr. 273 , 354 P.2d 865 ].)

Since he was charged with sex offenses, defendant complains that the court should have given a cautionary instruction, on its own motion, regarding the ease with which such accusations are made and the difficulty confronting the defendant to disprove the same. In People v. Nye, 38 Cal.2d 34 [ 237 P.2d 1 ], the court points out that the subject instruction should be given where the victim’s testimony is uncorroborated ; here, however, there were several victims who gave direct testimony, and there was considerable circumstantial evidence of an incriminating nature. The point is, accordingly, not sustainable. Further on the matter of the court’s instructions, it is contended that the instruction relating to defendant ’s failure to testify was inadequate; upon a reading of this section of the court’s charge, we are not persuaded that there is any validity to the instant claim.

There is no merit to the next contention that the court erred in certifying defendant for hearing and examination to determine whether he was a sex offender. In this connection he challenges the constitutionality of legislation pertaining to sexual psyeopaths. (Welf. & Inst. Code, § 5500 et seq.) But defendant was sentenced to state prison, and not committed as a mentally disordered sex offender, and hence has no standing to assert the constitutional claims just mentioned.

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied February 23,1968.