People v. Ozene

Opinion

Defendant George Ozene appeals from the trial court’s judgment entered on a jury verdict finding him guilty of violation of Penal Code section 261, subdivision 3 (rape by force and violence).

The Prosecution’s Case

On June 2, 1970 at approximately 3 p.m. the prosecutrix (“Sheila”) left her apartment located on Hayes Street in San Francisco in an attempt to find her boyfriend at an address on Franklin Street. She had been having problems with the boyfriend and was crying as she reached the street in front of her apartment house. At that point she was approached by appellant who asked her what was wrong. When Sheila asked appellant for directions to Franklin Street, appellant offered to show her the way, suggesting, however, that she should first wash her face; whereupon they went to Sheila’s apartment where appellant told her to calm down.

After a while Sheila stood up stating that she had to leave to find her boyfriend. At this point she was hit on the head with a skillet wielded by appellant. Although the force of the blow was sufficient to shatter the skillet, it did not knock her out. Appellant than grabbed her and threw her down to the floor and said, “If you scream, I am going to kill you.” Sheila screamed and appellant started strangling her. After Sheila had become weak, appellant forced her to her knees and placed his penis in her mouth. Sheila fell to the floor again and once more appellant started strangling her. She told appellant that she had a disease. Nevertheless appellant turned her over on her stomach and inserted his penis in her rectum. He then turned her over on her back and placed his penis in her vagina. After appellant had an orgasm, he fan from the apartment. During the fight which lasted about 15 minutes Sheila scratched her assailant, leaving a blood streak on his face.

On the day of the incident Sheila was shown photographs by police officers. The group of photographs were all pictures of black men of approximately the same age. She identified appellant as being the man who attacked her.

Officer Barry Johnson testified that on June 2, 1970, at about 3 p.m., he was in the area of the 500 block of Hayes Street, at which time he saw a person, subsequently identified as appellant, running north on Laguna toward Grove while continually looking back. Appellant had a rip in his pants. About mid-block appellant slowed down, took his jacket off, and placed it around his pants covering the rip. Officer Johnson stopped appellant and asked him several questions. Appellant, who had a blood smear on his cheek, appeared nervous and gave evasive answers. At first he stated that his name was Silver and that he had no identification, but later produced a driver’s license which showed his real name. When Officer Johnson learned that no incident was reported in the area he released appellant from the temporary detention.

The Defense

In rebuttal, appellant took the stand in his own behalf and gave alibi testimony. He stated that early on the morning of June 2, 1970, he left San Francisco by bus and arrived in Marin City at 9:30 a..m. where he stayed until June 6, 1970. His alibi was verified by a girlfriend, a friend of the girlfriend and by appellant’s sister who all testified that between 2:30 and 3 p.m. on June 2, 1970, they saw appellant in Marin City, and, furthermore, that on June 2, 1970, appellant’s car was inoperable.

Appellant argues that the judgment below is erroneous because (I) there is insufficient evidence to sustain the conviction of forcible rape; (II) the instruction taken from Allen v. United States (1896) 164 U.S. 492 [ 41 L.Ed. 528 , 17 S.Ct. 154 ] (“Allen instruction”) was coercive and thereby deprived him of his right to trial by an impartial jury; and (III) the diagnostic report prepared pursuant to Penal Code section 1203.03 deprived him of due process of law.

Appellant’s first contention, in essence, is that the judgment of

It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbablility must plainly appear (People v. Jones (1970) 10 Cal.App.3d 237 , 247 [ 88 Cal.Rptr. 871 ]; People v. Perrin (1967) 247 Cal.App.2d 838 , 844 [ 55 Cal.Rptr. 847 ]; People v. Seals (1961) 191 Cal.App.2d 734 , 738 [ 13 Cal.Rptr. 7 ]).

Viewing the evidence in light of these principles it simply cannot be said that the statements of Sheila are inherently improbable or physically impossible or of such a nature as to shock the moral sense of this court. Consequently, after having been believed by the jury, they are not subject to review on appeal.

Moreover, appellant’s contention notwithstanding, the testimony of Sheila is not uncorroborated. On the contrary, the credibility of her statements was greatly enhanced by the testimony of Officer Johnson and by the additional evidence that appellant gave a false name when he was briefly detained by the police near the scene of the crime.

The

facts giving rise to appellant’s complaint relative to the Allen instruction may be summarized as follows:

The jury began its deliberations on November 17, 1970 at 11:32 a.m. At 6:03 p.m. on the same day the court was informed that the jury was hung. The next day the jury continued its deliberation at 9:35 a.m. At 4:05 p.m. the jury returned to the courtroom and the foreman, advised the court that the jury was still hung with a numerical division of 11 to 1. The court, however, was not notified whether the division was for acquittal or conviction. Thereupon, the court read the jury the Allen instruction taken from People v. Ortega (1969) 2 Cal.App.3d 884 , 896 [ 83

“In order to make a decision more practicable, the law imposes the burden of proof on one party or the other in’all cases. In the present case, the burden of proof is on the People of the State of California to establish every part of it beyond a reasonable doubt. And if in any part of it you are left in doubt, the defendant is entitled to the benefit of the doubt and must be acquitted. But in conferring together, you ought to pay proper respect to each other’s opinions and listen with a disposition to be convinced to each other’s arguments.

“And on the other hand, if much the larger of your panel are for a conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, which makes no impression upon the minds of so many men or women equally honest, equally intelligent with himself or herself, and to have heard the same evidence with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath.

“And on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to' the minds of their fellows.

“That is given to you as a suggestion of the theory and rationale behind jurors coming to a decision one way or the other.

“So the Court is going to ask you to retire and continue in your deliberations.” (Italics added.)

(b) Adverting to appellant’s second contention, it ought to be emphasized that the instruction given in the case at bench has been consistently approved in California if the surrounding circumstances have not made it coercive (People v. Ortega, supra; People v. Barnes (1962) 210 Cal.App.2d 740 , 748 [ 26 Cal.Rptr. 793 ]; People v. Baumgartner (1958) 166 Cal.App.2d 103 , 106-108 [ 332 P.2d 366 ]). The basic test of coerciveness has been stated to be whether the instruction and. the remarks of the court, viewed in the totality of the circumstances, operated to displace the independent judgment of the jury in favor of compromise and expediency (People v. Carter (1968) 68 Cal.2d 810 , 817 [ 69 Cal.Rptr. 297 , 442 P.2d 353 ]). Thus, the instruction was held coercive when the judge emphasized that a verdict must be reached because of the simplicity of the evidence or for any other reason (People v. Crossland (1960) 182 Cal.App.2d 117 [ 5 Cal.Rptr. 781 ]); and/or when the judge threatened to lock up the jury until the verdict was agreed upon (People v. Carter, supra, 68 Cal.2d 810 ; People v. Crowley (1950) 101 Cal.App.2d 71 [ 224 P.2d 748 ]); or where the judge knew not only the numerical division of the jury but also how the jurors were divided upon the question of guilt (People v. Baumgartner, supra).

Turning to the case at bench with the foregoing views in mind, it becomes clear that none of the coercive elements are present. Thus, there is no indication that the judge made any remark that a verdict must be reached because of the simplicity of evidence or any other reason; or that he threatened to lock up the jury until a verdict was reached. Significantly enough, while the judge knew that the jury stood eleven to one, he was unaware whether the division of the jury was for conviction or acquittal. Consequently, there is simply no basis to support appellant’s argument that the instruction was coercive.

Appellant places undue weight on the rereading of the instruction by the

It should be noted that utilization of the 1203.03 procedure is entirely within the discretion of the court. In short, since appellant could have been sentenced directly to state prison without being sent for the diagnostic study, he should not now be heard to complain that the same result has obtained after such evaluation.

Furthermore, it is well settled that probation is not a right but an act of clemency which rests within the discretion, of the trial court whose order granting or denying probation will not be disturbed, on appeal unless there has been an abuse of discretion (People v. Keller (1966) 245 Cal.App.2d 711 , 715 [ 54 Cal.Rptr. 154 ]; People v. Henderson (1964) 226 Cal.App.2d 160 , 163 [ 37 Cal.Rptr. 883 ]). It is also established that the report of the probation officer is not binding upon the trial court (People v. Johnson (1951) 106 Cal.App.2d 815 , 816 [ 236 P.2d 190 ]; People v. Wahrmund (1949) 91 Cal.App.2d 258 , 262 [ 206 P.2d 56 ]), and if the report contains information not proper to be determined by the court, the appellate court must assume that the trial court was not influenced by irrelevant matters (People v. Warren (1959) 175 Cal.App.2d 233 , 247 [ 346 P.2d 64 ]).

Turning to the record at hand, it appears that in denying appellant’s probation, the trial court did not adopt the probation officer’s negative recommendation as a matter of routine, but also considered the evaluation of the psychiatric council which recommended probation, The question of probation was widely discussed in the presence and with the participation of appellant’s counsel, the record clearly demonstrating that the denial was the product of the court’s independent evaluation of the evidence as a whole.

The judgment is affirmed.

Taylor, P. J., and Rouse, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied November 15, *1972. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.