Opinion
For Opinion on Hearing, see 56 Cal.Rptr. 312, 423 P.2d 240. Reginald D. Armstrong, Compton, for appellant.
By appointment of the District Court of Appeal.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Leslie F. Bell, Deputy Atty. Gen., for respondent.
FLEMING, Justice.
Sergio Perez was found guilty of rape (Penal Code, § 261, subd. 4) and first-degree burglary (Penal Code, § 459), and sentenced to prison on the burglary count. He appeals.
The complaining witness, Dorothy Holder, testified that she was sewing in her living room at night while her husband, a truck driver, was on a trip to San Francisco. Her four children were asleep in their bedrooms. She put on the dress she was sewing and went into a spare bedroom to look in the mirror. As she turned around, she saw Perez, a man she had never seen before, standing behind the door. She let out a loud scream but was told to stop yelling and obeyed because he said he had a knife in his pocket. He pushed her on the bed and had sexual relations with her, to which she submitted in fear for her safety. The next morning around seven she was awakened by the doorbell and found Perez at the door, but after she ordered him to leave, he drove away. Mrs. Holder then went to a neighbor's house and told her what had happened. The neighbor, Mrs. Altman, testified that Mrs. Holder was 'very white' and 'very emotionally upset.' They went out to buy shells for a rifle which Mrs. Holder had in the house. That night, she was again awakened by the doorbell and by loud knocking on the door. She looked out the window, saw Perez's car, and called the police. A police officer testified that when he answered the call Mrs. Holder opened the door with a rifle in her hand, and that the door had been barricaded with a tool chest. Another police officer apprehended Perez several blocks away and arrested him.
Defendant took the stand and testified to a completely different set of facts. He had first met Mrs. Holder at a bar on a weekend visit during the first part of December, and they had voluntary sexual intercourse several times. On January 6 he telephoned Mrs. Holder, and on her invitation went to her house about one-thirty in the morning. They had voluntary sexual relations. He In rebuttal, Mrs. Holder and her husband both testified that she never drank alcoholic beverages because she had a bleeding ulcer. Mr. Holder testified he had been home with his wife every weekend during the first part of December and produced time cards from his employer to support his testimony.
1. On appeal, Perez urges that the evidence against him was inherently improbable and therefore insufficient to sustain his conviction. However, the jury chose to believe Mrs. Holder and to disbelieve the defendant. We cannot disturb that decision unless her testimony is unworthy of belief. (People v. Nash, 216 Cal.App.2d 491, 492-493, 31 Cal.Rptr. 195, cert.den. 375 U.S. 988, 84 S.Ct. 522, 11 L.Ed.2d 475.) Defendant cites the case of People v. Carvalho, 112 Cal.App.2d 482, 490-491, 246 P.2d 950, where a conviction for kidnapping was reversed because of the inherent improbability of the testimony. The victim was the estranged wife of the kidnapper. She had ample opportunity to escape, she had entertained her husband at dinner following the offense, and she had not reported the event until a month after it occurred. Perez argues that similar elements--failure to escape, lack of a weapon, lack of timely complaint--were present in his case. But if the testimony of the prosecutrix is accepted, she had no opportunity to escape because Perez threatened her with a knife. A neighbor corroborated her story by testifying that Mrs. Holder told her of the attack within a few hours of its occurrence, and Mrs. Holder complained to the police within twenty-four hours. Although Perez's story directly contradicted Mrs. Holder's, we cannot say her version was inherently improbable. (People v. Simpson, 43 Cal.2d 553, 562-563, 275 P.2d 31.) There was a sharp conflict in the evidence, and the jury's resolution of that conflict is binding on us. (People v. Wein, 50 Cal.2d 383, 398-399, 326 P.2d 457; People v. Nash, 216 Cal.App.2d 491, 492-493, 31 Cal.Rptr. 195, cert. den. 375 U.S. 988, 84 S.Ct. 522, 11 L.Ed.2d 475.
2. Defendant argues that it was prejudicial error to admit in evidence the testimony of Oliver Stanfield, a police officer, because it consisted of hearsay which was obtained from him during the accusatory stage without legal advice in violation of the rule of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. Officer Stanfield testified that Perez after his arrest denied any connection with Mrs. Holder. The officer then told him 'that was the worst defense he could have; * * * I stated to him that if he wanted to make up a story, the best story to make up would be that he knew the gal and he'd been having sexual intercourse with her all along, and knew she was mad at him and trying to get even. Then I asked him for his statement again, and at that time he told me he had picked her up some two or three weeks prior to that, in a bar or restaurant. They had been engaging in acts of sexual intercourse for the two or three week period and that he had always gone to the house early in the morning so as not to have the neighbors know it.' Defendant argues that this testimony was highly prejudicial hearsay.
The testimony of Officer Stanfield was direct testimony, not hearsay. (Code Civ.Proc. § 1845; People v. Dalton, 172 Cal.App.2d 15, 19, 341 P.2d 793.) A defendant's change of story is normally admissible on the issue of his veracity and credibility. (People v. Osslo, 50 Cal.2d 75, 93, 323 P.2d 397.)
However, the questioning of the accused by Officer Stanfield appears to have taken place at a time when the accusatorial stage had been reached, and the accused should have been advised of his right to remain silent and his right to counsel. (People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. People v. Stewart,
People v. Dorado,However, these statements of the defendant were neither confessions of guilt nor admissions of criminal acts, but rather exculpatory statements which were identical with his testimony under oath on the stand. Defendant was not substantially prejudiced by their introduction in evidence for, if believed, they were a complete defense to both the rape and the burglary charges. (People v. Robinson, 62 Cal.2d 889, 896, 44 Cal.Rptr. 762, 402 P.2d 834.) Since the process of interrogations only produced a denial of criminal conduct which duplicated Perez's testimony under oath in court, we do not believe the error of their admission resulted in a miscarriage of justice nor that a result more favorable to him on retrial is probable. (Calif.Const., Art. VI, § 4 1/2; People v. Watson, 46 Cal.2d 818, 836-837, 299 P.2d 243; People v. Mathis, 63 A.C. 434, 450-451, 46 Cal.Rptr. 785, 406 P.2d 65.)
The judgment of conviction is affirmed.
HERNDON, J., concurs.
ROTH, Presiding Justice (dissenting).
I dissent.
The majority admit and it is abundantly clear from the record that without advice as to his rights Officer Stanfield interrogated appellant during the accusatory stage. During the interrogation, Officer Stanfield undertook to advise appellant that his denials were not believable, and proceeded to advise and suggest to appellant the type of defense appellant should make. The majority point out that the '* * * statements of the defendant were neither confessions of guilt nor admissions of criminal acts, but rather exculpatory statements which were identical with his testimony under oath on the stand.'
In my opinion, however, Stanfield's testimony as to how the defense to which appellant testified, was allegedly contrived, is as damning an incriminating admission as it is possible to make. In a case such as the one at bench, the officer's testimony amounted to a complete annihilation of the defense and it was prejudicial error. (People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.)
I would reverse.