Opinion
Rehearing Denied June 8, 1966.
For Opinion on Hearing, see 55 Cal.Rptr. 902, 422 P.2d 590.
Belli, Ash, Gerry, & Ellison, by Melvin Belli, San Francisco, for appellant.
Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond Momboisse, Deputy Atty. Gen., Sacramento, for respondent.
REGAN, Justice.
Defendant was indicted by the grand jury on three separate counts of rape (Pen.Code, § 261, subd. 4) committed on or about November 27, 28 and December 4, 1964, charging acts of sexual intercourse with S.--a female seventeen years of age and not the wife of defendant--without her consent, after having rendered her incapable of resisting the accomplishment of said acts by the administration to her of an intoxicating narcotic and an anesthetic substance. A trial jury found defendant guilty on each count. Defendant's motion for a new trial and his motion to reopen the motion for a new trial were denied and he was sentenced to imprisonment for the term provided by law. He has appealed from the judgment of conviction and from the denial of his motion for a new trial. The order denying his motion for a new trial is not appealable, and the appeal therefrom is dismissed. (People v. King, 60 Cal.2d 308, 32 Cal.Rptr. 825, 384 P.2d 153.)
Because defendant has raised the question as to the sufficiency of the evidence, it is necessary to set it forth in more detail than we prefer in a case of this nature.
The prosecutrix, S., who was 17 years of age at the time, testified to the following: Suspecting that she was pregnant, she went to defendant on October 20, after being told that he was a doctor who would perform an abortion. On that first day defendant did On November 9, she returned to defendant's office to find out the results of the examination. In his private office, before he talked to her, he looked in her coat pockets and asked to look in her purse, stating that he 'didn't trust some people.' When she was told that she was pregnant, she asked him if he would help her. He told her that he would help her without charge, but she must move closer to his office for he would be wanting to see her at irregular hours.
She saw defendant again on November 12 and mentioned that she had found a room nearby which was located a block down the alley from his office. Defendant told her that he would be wanting her to come to his office that night, but that he would call before she was to come down, and since she had not as yet moved to the new room, and because she would not be able to drive after the treatment, she should take a taxicab to the corner near his office.
That evening, arriving at approximately 7:30 to 8:00 p.m., S. found defendant alone in his office. Defendant had her disrobe and put on a surgical gown. After giving her an injection in the muscle of her upper right arm and giving her another pelvic examination, he had her lie down on a bed located in another room. He sat down beside her and talked for a while, he then left the room, returned immediately with a hypodermic and tourniquet and gave her an injection in the vein in her right arm. As S. described her immediate reaction, 'I sort of passed out. It was like my breath sort of was taken away.' She later awoke feeling light-headed. She was driven back to the apartment by defendant. She did not sleep well that night because of feeling dizzy, light-headed and nervous.
On Friday, November 20, defendant called S. and at approximately 4:00 p.m. she went to his office where the same events occurred, but this time she was aware that she had had at least one act of sexual intercourse with defendant and possibly more. She spent the night at the office and believes that she finally left his office on Sunday. During this time she was at defendant's office she received more than one injection and was given four or five 'sleeping pills.'
S. went to defendant's office on Thanksgiving Day, November 26, after he had called her. Again, the injections and an act of intercourse. She did not stay that night for defendant had office hours the following morning. However, that Friday afternoon, November 27, defendant called and had her return. She was given the injections and there was an act of intercourse; defendant left her in the office that night but returned on Saturday, November 28. She stayed in the office until Sunday; during which time she received approximately four injections and had other acts of intercourse with defendant. She explained that she could not remember anything specifically because everything was mostly like a dream, that she felt dizzy, that she just did not care about anything; that she 'just wanted to lay there and just do nothing.'
On the following weekend, Friday, December 4, S. returned to the office after defendant called her. A similar sequence of events occurred, excepting that she was given the intravenous injection in a vein on the back of her hand because, as defendant explained to her, she had had too many injections in the veins in her arms.
S. also testified that one night while she was in defendant's office he talked to an uncle in Hawaii about the sale of some property he owned. Upon completion of the call, he told her that his nickname was Dede. Defendant admitted that Dede was his nickname and that he had several uncles in Hawaii, but denied that he had ever placed a direct call without charge to Hawaii from his office. The prosecution, however, established that this was possible.
Other testimony of S. was that she liked the effect of the injections. She waited for defendant's calls and looked forward to her visits to his office. S. however, did not believe that she would have wanted to have Mrs. D. J., owner-manager of the rooming house where S. moved, testified that while S. lived there defendant called between 10 to 12 times asking for 'Nancy,' the name S. had given defendant when she first went to his office. She further testified that S. stayed home the first weekend she moved in but the following three weekends S. was not about. When S. was around 70 to 80 percent of the time she appeared 'high,' that she did not act like a normal '19' year old. S. would appear bleary-eyed and groggy; one pupil would be dilated; she spoke incoherently, and would fall asleep while talking. On occasions S. would be very depressed and moody, sleeping as long as 18 hours without awakening. Mrs. D. J., a practical nurse, having had experience with narcotic addicts, was of the opinion that S. was on drugs.
To show a common scheme or plan the prosecution introduced the following evidence:
Testimony of J. W.
J. W. went to see defendant in May 1962 inquiring about a legal abortion after she had been raped. Defendant had her disrobe, don a gown, get on the examination table and then gave her an intravenous injection, purportedly to abort her, which rendered her unconscious. When she awoke, she was drugged and groggy and she was lying on a bed in another room nude; defendant, who was nude from the waist up, was holding onto her shoulders and speaking to her in endearing terms. When she asked what defendant had done, he laughed and told her that if she had not been pregnant she would be now. By the way she felt she knew that an act of intercourse had occurred.
J. W. returned to defendant's office the following week for her second 'treatment' for an abortion, having her father drop her off at the corner near his office as directed by defendant. She again disrobed and had an intravenous injection but did not believe that she had an act of intercourse. J. W. went to defendant's office the third time, after he had called her around 9:00 p.m., but because of the hour her father dropped her off in front of defendant's office. Defendant was quite abrupt with her and had her leave, telling her that he would no longer help her for he believed that someone had found them out.
Testimony of C. K.
A year before trial, C. K. started working for defendant from 5:30 p. m. to 6:30 p. m. one day a week, on Saturdays; first to pay off a bill she owed defendant for treatments, and secondly to receive the intravenous injections followed by an act of sexual intercourse with defendant. She admittedly desired having intimate relations with defendant, but did not believe that she would have voluntarily participated without the injections.
Testimony of I. A.
I. A. testified that in July and August 1949 she worked for defendant. That two days after defendant purportedly raped her, she spoke to him of her fear of pregnancy. Defendant examined her, advised her that she was pregnant, but that he would take care of the matter for her. Defendant gave her an injection of sodium pentothal, which rendered her unconscious. She awoke feeling dizzy and sick. She was aware that an act of intercourse had occurred.
The following Monday, defendant had her return to the office after hours to remove some packing that he had allegedly inserted. Over her resistance she was given an injection, and again an act of intercourse occurred while she was unconscious. I. A. refused to return after this last incident.
Defendant, a physician and surgeon, took the stand in his defense and denied the charges of the indictment. He denied that he had ever injected any drugs to render S. unconscious, or that he let her remain in his office overnight. He admitted that he Defendant testified that he was not giving S. any prenatal care, but was seeing her only to determine whether she was pregnant. However, because S. was distressed over her condition, he gave her vitamin shots, which consisted of vitamin B. complex, B-12 and a little amphetamine, the latter commonly known as benzedrine or dexedrine. Defendant also gave her some sleeping pills.
Defendant contends that it was prejudicial error for the court to admit into evidence a tape recorded phone conversation between the prosecuting witness and the appellant since the appellant was not advised of his right to counsel and his right to remain silent.
Police officers, knowing defendant intended to call S. at her rooming house on December 8, 1964, received permission from the owners of the house to attach an electronic microphone to the telephone for the purpose of recording the conversation. Then with the consent of S. the following conversation was taped:
'WOMAN'S VOICE: Hello.
'MAN'S VOICE: May I speak to Nancy?
'WOMAN'S VOICE: Just a moment, please, I'll get her.
'MAN'S VOICE: Thank you.
'WOMAN'S VOICE: Hello.
'MAN'S VOICE: Hi.
'WOMAN'S VOICE: Hi.
'MAN'S VOICE: Right away?
'WOMAN'S VOICE: All right. I don't feel very good.
'MAN'S VOICE: Can you come right away?
'WOMAN'S VOICE: Ah, where are you?
'MAN'S VOICE: Well, where do you think?
'WOMAN'S VOICE: Are you at the office right now?
'MAN'S VOICE: Yeah.
'WOMAN'S VOICE: Okay. I'll be fine if I just throw up.
'MAN'S VOICE: Oh, oh. Okay, I'll see you.
'WOMAN'S VOICE: I--I started bleeding again.
'MAN'S VOICE: Well, come over right away.
'WOMAN'S VOICE: Okay.
'MAN'S VOICE: All right.
'WOMAN'S VOICE: 'BYE.
'MAN'S VOICE: 'Bye.'
At the time the conversation was taped the officers had in their possession a warrant to search the defendant's office as well as a warrant for defendant's arrest. The trial court admitted the recording to be played to the jury notwithstanding defendant's objection to the introduction of the recording into evidence on the ground that defendant had not been advised of his right to counsel and his right to remain silent before he began talking on the telephone.
We look to the recently decided opinion of the Supreme Court in Ballard v. Superior Court, 64 A.C. 165, 49 Cal.Rptr. 302, 410 P.2d 838, where the court held that since petitioner was clearly not in custody at the time he uttered incriminating statements to the raped victim he could not successfully challenge the admissibility of a secretly recorded conversation with the victim on the basis that his incriminating statements were obtained without advising him of his rights to counsel and to remain silent.
Apropos of the question before us is the court's following statement in Ballard, supra, at pages 175-176, 49 Cal.Rtpr. at page 308, 410 P.2d at page 844:
'In People v. Dorado, supra, 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371, we stated that the following three factors, which were present in the Escoedo case, must eventuate before the accusatory stage, or that stage when one has a con stitutional 'Since an 'arrest encompasses two of the circumstances which produced the accusatory stages in the Escobedo and Dorado cases'--(1) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, and (2) the suspect is in custody--we compressed the required factors for the accrual of the accusatory stage into two. (People v. Stewart (1965) 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 400 P.2d 97, 100.) Thus we said in Stewart: 'Whenever the two conditions are met, that is, when the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached and the suspect is entitled to counsel.' (Ibid.)
'By specifying the arrest as a requirement for the advent of the accusatory stage, we necessarily retained custody as a requisite; an arrest includes custody. (Pen.Code, § 834.) At no time have we discarded custody as an essential element of the accusatory stage. The dangers that Escobedo and Dorado sought to deter, such as coercion, can only take place if a suspect is in custody.
'People v. Furnish (1965) 63 Cal.2d 536 47 Cal.Rptr. 387, 390, 407 P.2d 299, 302, does not alter this rule; it holds that the 'formality of an arrest' is not an inevitable 'condition precedent to the advent of the accusatory stage' since 'the police could, by delaying the arrest where the situation did not demand one, circumvent the accused's right to counsel.' (63 Cal.2d [at pp,] 540-541, 47 Cal.Rptr. 390, 407 P.2d 302.) We there recognized that custody was essential to the accusatory stage but that the police, in some cases, could physically hold a defendant in custody without an official arrest. The police could 'detain' a defendant without arresting him; official detention would under some circumstances play the same role as an arrest. Likewise the very recent case of People v. Chaney (1965) 63 Cal.2d 803, 805, 48 Cal.Rptr. 188, 190, 408 P.2d 964, 966, recognizes the requirement of the custody stating, '[D]efendant was not free to leave from the moment he appeared' at the police station. (See also People v. Williams (1965) 63 Cal.2d 471, 479, 47 Cal.Rptr. 7, 406 P.2d 647.)'
In the case before us there was no custody, nor was there a process of interrogation by the police for the purpose of eliciting incriminatory statements. The telephone call was initiated by the defendant and the ensuing conversation consisted of unsolicited statements obtained without coercion. (See People v. Beverly, 233 Cal.App.2d 702, 715, 43 Cal.Rptr. 743; People v. Jones, 237 A.C.A. 588, 594, 47 Cal.Rptr. 40.)
Defendant next contends that it was prejudicial error for the deputy district attorney to comment and the court to instruct on the failure of the appellant to deny or explain evidence relating to other acts.
Although defendant took the stand in his own behalf and denied complicity in the offenses charged against him by S., the prosecuting witness, he did not testify as to the evidence produced by the state through the testimony of J. W., C. K. and I. A., to show a common scheme or plan. The prosecution on cross-examination of defendant sought to question him in this regard but was met with the objection of counsel for defendant that it was going beyond the scope of direct examination. The court sustained the objection. Interspersed in the prosecution's opening and closing arguments are comments that defendant failed to controvert the testimony of these three witnesses.
Defendant charges it was prejudicial error (1) for the prosecutor to so comment and (2) for the trial court to instruct on the effect of such failure to deny or explain the evidence. Defendant argues that Griffin v. The case of the defendant who takes the stand and the case of a defendant who refrains from testifying are vastly different. (Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, 710.)
Here, if defendant had refused to take the stand the comments of the prosecution on defendant's silence, or the trial court's instructions that such silence is evidence of guilt would constitute error. (Griffin v. State of California, supra,) But defendant having elected to testify in his own behalf as to material issues in the case, and not only having refrained from testifying concerning the evidence of other crimes introduced against him, but also objecting as he did to the prosecution's attempt to cross-examine him about the other offenses, brings him within the rule expressed in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed.2d 442, wherein the United States Supreme Court held that where the accused elects to take the stand in his own behalf and voluntarily testifies for himself, he may not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences to be naturally drawn from it. 'When he [defendant] took the witness stand in his own behalf he voluntarily relinquished his privilege of silence, and ought not to be heard to speak alone of those things deemed to be for his interest, and be silent where he or his counsel regarded it for his interest to remain so, without the fair inference which would naturally spring from his speaking only of those things which would exculpate him and refraining to speak upon matters within his knowledge which might incriminate him.' (242 U.S. at p. 494, 37 S.Ct. at p. 198; see also People v. Mortenson, 241 A.C.A. 173, 174-175, 50 Cal.Rptr. 269.) Hence, the court may instruct the jury concerning the failure of the accused to explain acts of an incriminating nature which the evidence for the prosecution tended to establish against him, and the inference to be drawn from his silence. (Johnson v. United States, supra, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704; Dyson v. United States, 9 Cir., 283 F.2d 636; United States v. Sahadi, 2 Cir., 292 F.2d 565; People v. Clapper, 233 Cal.App.2d 34, 37, 43 Cal.Rptr. 105.) Moreover, the defendant who takes the stand and fails to explain evidence against him may properly be the subject of comment by the prosecution. (Johnson v. United States, supra, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. at p. 711.)
Since defendant in the instant case testified on his own behalf, his contention that the comment and the instruction by the trial court was a violation of his constitutionally guaranteed right against self-incrimination fails. This right was waived when he became a witness. (People v. Clapper, supra, 233 Cal.App.2d 34, 37, 43 Cal.Rptr. 105; Caminetti v. United States, supra, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed.2d 442; Johnson v. United States, supra, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704.)
Defendant asserts it was prejudicial error to permit C. K., a witness for the prosecution, to testify, alleging the witness' name was obtained by the prosecution as a result of an illegal search and seizure. The evidence on this point produced by defendant and the prosecution was in sharp conflict. The trial court's ruling that C. K. could testify is supported by substantial evidence and must be sustained. (People v. Jackson, 183 Cal.App.2d 332, 6 Cal.Rptr. 505.)
Defendant's next contention is that it was prejudicial error for the court to admit evidence of other acts of his to show common scheme or plan.
The testimony of prosecution witnesses J. W., C. K., and I. A., was admitted to show Evidence of the commission of acts similar to the alleged crime committed is admissible to show common scheme or plan or modus operandi. (See People v. Craig, 111 Cal. 460, 44 P. 186; People v. Thorne, 10 Cal.2d 705, 76 P.2d 491; People v. Grimes, 113 Cal.App.2d 365, 248 P.2d 130; People v. Gosden, 6 Cal.2d 14, 56 P.2d 211.) Particularly, evidence of similar acts to show modus operandi is admissible in rape cases. (People v. Cassandras, 83 Cal.App.2d 272, 188 P.2d 546; People v. Wojahn, 169 Cal.App.2d 135, 337 P.2d 192; People v. Minkowski, 204 Cal.App.2d 832, 23 Cal.Rptr. 92.)
"It is settled in this state * * * that except when it shows merely criminal disposition [citations], evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. 'The general tests of the admissibility of evidence in a criminal case are: * * * does it tend logically, naturally, and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not."' (People v. Lopez, 60 Cal.2d 223, 249-250, 32 Cal.Rptr. 424, 439, 384 P.2d 16, 31; People v. Sigal, 235 Cal.App.2d 449, 453-454, 45 Cal.Rptr. 481.) Evidence of prior offenses carries with it the risk that its probative value may be outweighed by its possible prejudicial effect; evaluation of this risk, however, rests in the sound discretion of the trial court. (People v. Henderson, 60 Cal.2d 482, 495, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Adamson, 225 Cal.App.2d 74, 76, 36 Cal.Rptr. 894.)
We are of the opinion that the evidence related above was properly admitted. The commission of similar acts on the three prosecution witnesses was relevant to show a sufficient number of common features with the rapes committed on S. so as to warrant the inference that if the defendant committed the other acts he probably committed the rapes charged.
Defendant next contends the trial court abused its discretion in denying his motions for a new trial on the ground of newly discovered evidence. He asserts tape recordings and affidavits of three persons, one of which was Mrs. Ing, made subsequent to the trial indicated that C. K. had perjured herself at the trial, and that I. A., who had also testified as to the evidence of prior crimes, was in error as to the dates.
'* * * [T]he granting or denial of a motion for a new trial on the ground of newly discovered evidence is a matter within the sound discretion of the trial court. [Citations.] It is also well settled that such motions are looked upon with disfavor [citations] and that unless there is a clear showing of an abuse of discretion, an appellate court will not interfere. [Citations.]
'To entitle a party to have a new trial on this ground, 'it must appear,--'First, that the evidence, and not merely its materiality, be newly discovered; second, That the evidence be not cumulative merely; third, That it be such as to render a different result probable on retrial of the cause; fourth, That the party could not with reasonable diligence have discovered and produced it at the trial; and, [5.] that these facts be shown by the best evidence of which the case admits.''' (People v. Williams, 57 Cal.2d 263, 270, 18 Cal.Rptr. 729, 733, 368 P.2d 353, 357; People v. Richard, 101 Cal.App.2d 631, 635-636, 225 P.2d 938.)
The fact that an important prosecution witness has recanted does not necessarily compel granting the motion. In such a case, the trial judge is required to People v. Langlois,
People v. McGaughran, People v. Poor, People v. Jones,It should be noted that there is no affidavit by C. K. and that two days after her second conversation with Mrs. Ing, on April 28th, police officer Frank Nugent saw C. K. regarding her conversation with Mrs. Ing. At that time C. K. told Nugent her statements to Mrs. Ing were lies, that she did in fact have sexual relations with defendant on Saturdays, generally after receiving an injection.
We are of the opinion that the court did not abuse its discretion in denying defendant's motion for new trial nor in its denial of defendant's motion to reopen his motion for a new trial which was based on the ground of newly discovered evidence relating to the testimony of witness I. A. The record discloses this 'newly discovered evidence' to be purely of an impeaching nature, and as such not a valid ground for granting a motion for a new trial. (People v. Yankee, 79 Cal.App.2d 431, 437, 179 P.2d 582; People v. Jones, supra, 89 Cal.App.2d 151, 153, 200 P.2d 65; People v. Chester, 142 Cal.App.2d 567, 574, 298 P.2d 695.)
Defendant next contends that as a matter of law there is insufficient evidence to support the verdict, urging that the prosecutrix S. consented to the acts of intercourse with defendant, and that her credibility was impeached.
Throughout defendant's argument in support of this contention, defendant emphasizes the evidence in his favor and overlooks the fact that there was a conflict in the evidence which was resolved by the jury.
It is well established that the appellate court will not reweigh evidence, assess credibility of witnesses or determine inconsistencies and contradictions in their testimony; these are matters for the trial judge or jury. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Sullivan, 214 Cal.App.2d 404, 408, 29 Cal.Rptr. 515; People v. Austin, 198 Cal.App.2d 186, 190, 17 Cal.Rptr. 782; People v. Hatton, 114 Cal.App.2d 195, 197, 249 P.2d 901.) It must clearly be made to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. (People v. Newland, supra, 15 Cal.2d at p. 681, 104 P.2d 778; People v. Guy, 191 Cal.App.2d 714, 720, 13 Cal.Rptr. 17.)
As noted in People v. Hillery, 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 36, 401 P.2d 382, 388, "It is the trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' * * * 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt. * * *"
There is in this case substantial evidence to support the conclusion of the jury.
Finally, we have considered defendant's assignment of error relating to the court's failure to give several requested instructions and his contention of prejudicial misconduct of the prosecutor relating to the discovery order, the questioning of witnesses, as well as various statements made in argument, and find them without merit.
The trial court fully and fairly covered all of the points involved in its instructions to the jury. And, in the instances of alleged error assigned by defendant we find no prejudicial misconduct. In addition, defendant in order to prevail on appeal must show that any error in this respect People v. Wilson,
The judgment is affirmed.
PIERCE, P. J., and FRIEDMAN, J., concur.