*1 Dist., No. 18747. First Div. One. Jan. [Crim. 1980.] Respondent, PEOPLE, THE Plaintiff and Appellant. ANDREW,
CLIFFORD ST. Defendant and *4 Counsel
George T. Davis and Morehead for Defendant Joseph C. Appellant.
George Deukmejian, Attorney General, Philibosian, Robert H. Chief Attorney Attorney O’Brien, General, Assistant Edward Assistant P. Murphy General, Wilkinson, Herbert F. John T. and Ina Levin Gyemant, Deputy Attorneys Respondent. General, Plaintiff and Opinion appeals judgment
GRODIN, J.Defendant Clifford St. Andrew from a finding guilty rape by of conviction entered on verdicts him (Pen. 3) (Pen. copulation Code, threat § subd. and forcible oral 288a). appeal Code, § The issues on best can be understood and evalu- against background ated rather unusual circumstances alleged which the crimes are to have been committed. hospital
The working night defendant was a attendant shift in the psychiatric prosecutrix, *5 hospital. ward of a San Francisco S., The Mrs. patient According was testimony, in that ward. to her the defendant night April period came to her on and over a of about during two hours which he in went and out of her room number of increasingly times, aggressive he made her, sexual advances to culmi- nating copulation in acts of oral and sexual intercourse.
According nothing during period S., to Mrs. this defendant said except early “good for an she stomach muscles” and remark that had body nothing give all, that he would return to her a rub. Mrs. S. said protest she with voiced no and she did not resist. In connection the oral copulation, explained, she “I he me I was was afraid would strike or period During copula- afraid he would after oral smother me.” assertedly tion, in which out for a defendant was room short period, help trying yelling Mrs. in S. said she considered to resist way against doing some but decided was de- so because she afraid the placed would fendant have her “sheeted” and in a locked room alone (“Sheeting” wrapping patient with him. consists of sheets order days earlier, to restrain her. Mrs. S. had been “sheeted” a few as a re- psychotic episode, participated sult aof in that and defendant had process.) according intercourse, S., After the act to Mrs. defen- just you “Now, said, me”; dant this is confidential. This is between expressed agreement. she, afraid, still The defendant testified on his own behalf to effect that his con- night April 22, 1978, with tact Mrs. S. the was more or less routine. pelvic denied He sexual contact with her. A examination Mrs. S. injury, vaginal disclosed no evidence of nor of in her A tract. semen piece wipe of Kleenex which Mrs. S. said she used to with herself after containing the incident was found to contain semen com- secretions patible enzyme types They with the blood and of the defendant. were compatible enzyme types also with husband, the blood and of Mrs. S.’s day. sought who visited her earlier that The defendant to convince the jury, supporting opposing and evidence was introduced both theory, responsible that Mr. was S. for the semen. convicted, addition to the offenses for which he was the defendant initially charged by grand jury violating
was indictment with Penal rape involving Code section subdivision means of intercourse person incapable day’s with a jury of consent. After one deliberation the acquitted charge. days’ defendant on that After two additional de- remaining liberation the arrived at verdicts on the two counts. grounds Defendant asserts a number of for reversal. These include proceedings contentions that the entire are void because the trial peremptory court challenge failed to honor a under Code of Civil Proce- 170.6, dure section or in the alternative that the failure of defendant’s challenge trial proper counsel to assert the form constituted denial of representation; (2) effective that the trial court abused its discretion in determining complaining competent that the testify; witness *6 erroneously permitted that the prosecution trial court the to introduce alleged prior evidence of part misconduct defendant, on the of jury failed purpose to instruct the as to the for which such evidence (4) considered; could be special that the refusing give trial court erred in to requested by provide instructions as failing defendant, and in to question by respect direct answer to a the with to the elements of (5) crime; the that the evidence fails to establish that the defendant prosecuting great (6) threatened bodily the harm; witness with that the grand jury right equal indictment protection violated defendant’s to of prosecution law; the present that the exculpatory failed to evi- grand jury. dence to the We find merit in certain contentions, of these considering as below, and, discussed aggregate, them in the we conclude that we have no alternative but to reverse.
I argues Appellant proceedings that the entire were invalid be- grant attorney’s peremptory cause the trial court failed to his trial challenge judge of the trial under Code of Civil Procedure section argument 170.6. This is based on the fact that first when informed presiding judge judge assigned the of the case was to the for disqualify trial, judge defense counsel an made oral motion to on ground assigned the that he was “informed and the believe[d]” that judge against prejudiced presiding judge would be his client. When the repeated comment, denied that motion without defense counsel the challenge language prefacing section, in the code his remarks penalty with perjury....” Again, statement, “I declare under presiding judge ignored request denied the motion and for a counsel’s thereupon statement of the basis the denial. The case was tried be- judge objection fore the whom to had been made.
Recognizing challenge formally that the because not defective supported “by penalty perjury affidavit or declaration under or an (Code (2)), appel- oral Proc., 170.6, statement under oath” Civ. subd. § argues judge denying lant that the trial in erred the motion because compliance” there was statute, “substantial with the alterna- support tive that failure of defendant’s to trial counsel the motion proper expected form constituted a to “in manner be failure act competent reasonably attorneys acting diligent depriving advocates,” representation right defendant of his constitutional effective counsel. (P eople Pope [152 23 Cal.3d 859].) P.2d We find first alternative contention to be without merit. requirement The oath or verification is more than section 170.6 part formality”; statutory “hollow it is an essential scheme of safeguards upon bearing disqualification constitutionality (Solberg Superior statute. Cal.Rptr. Court 19 Cal.3d 1148].) per was, therefore, 561 P.2d The denial se not improper. agree, however, We do that trial have counsel should requirements, been aware of the formal his failure to assert proper departure motion in form from the constituted a standard *7 professional competency applicable Pope. We reser- under have serious concerning opaque vations also face of the trial court’s silence the request explanation defense counsel’s obvious of awareness and for lack ruling. judge’s of the court’s While it is not a function to substitute umpire presiding judge case, counsel in the trial a “‘not mere
457 professional opponents, judicial over a contest of wits between but a of- grave determining justice ficer entrusted with the task of where lies parties sought under the law and the facts between the protection who have (1979) (People 249, of our courts.’” v. Carlucci 23 Cal.3d quoting Dupont 439, 256 [152 590 P.2d from Estate 15], (1943) Cal.App.2d 866].) 276, Thus, 60 [140 290 P.2d it has been held duty judge by that it is the of a trial to see that a case is not defeated (1916) (Hellings Wright Cal.App. “mere inadvertence” 29 656 (Bare 365]), (1921) [156 P. or “want of attention” v. Parker 51 Cal. App. 280]), 106, 108 [196 P. and “to call attention to in the omissions pleadings” likely evidence or defects in the which are to result a deci- (Farrar Cal.App. sion other than on the merits. v. Farrar Republic Grocery, 457 [182 P. See 989]. also Miller v. Inc. 396].) P.2d [242 For a trial court to remain obviously inept attempt silent in the face of an on behalf of a criminal right Legislature, simple defendant to assert a created when a procedural requirement presumably statement of the would have cured spot prejudice defect on the and without to the interests of party, constitutes, under the case, circumstances of this an unwarranted judicial abdication of the role.
II prosecution presented When the first Mrs. as a trial, S. witness at the objected ground defendant’s incompe- trial counsel on the that she was tent hearing under Evidence Code sections 7011 and 702.2 After a chambers court-appointed at which psychia- Kessler, Mrs. S. and Dr. appeared trist, testified, objection. the court overruled that Appellant ruling contends that constituted an abuse of discretion. People McCaughan Cal.2d 409 P.2d 974], the Supreme principles applicable Court set forth certain to the determina- 1 Section person 701: “A is disqualified to be a witness (a) if he is: Incapable of [¶] expressing himself concerning understood, the matter so as to be directly either or through interpretation by him; one who can (b) understand Incapable of under- [¶] standing duty of a witness to tell the truth.” “(a) Subject 2 Section 702: to Section testimony of a concerning witness particular matter is inadmissible unless personal knowledge he has of the matter. Against objection party, of a personal knowledge such must be shown before the may witness testify concerning (b) the matter. personal A witness’ knowledge of a [¶] matter by any evidence, be shown otherwise admissible including his own testimony.”
tion of witness of a from competency mental or suffering derangement These (a) defect. include the principles question “The following: to be is determined whether the proposed witness’s mental derangement or defect such is that he was of the deprived to the ability perceive event or about which he is to is of the testify deprived to recollect and ability (id., communicate with added); (b) reference thereto” at italics p. recollect, “Whether he did perceive accurately, does and communi- and are of cating accurately truthfully to be questions credibility (ibid.); (c) resolved the trier of “the by fact” a witness is competency to be determined the trial court in exercise of its judicial discretion” (id., 421); (d) “sound p. and discretion demands the exercise of great caution in as a witness who has qualifying competent history a insane delusions to the in a which relating very subject inquiry case the but, question rather, not whether act or not an was done simply manner in which it done and in to was details testimony (ibid.). mean the difference and acquittal” between conviction While was decided on the basis of McCaughan which has statutory language been Evidence Code sections 701 and superseded by revision does appear not to have affected these principles.3 basis
On the of the evidence adduced at the in-chambers hearing, was question a close one. Dr. Kessler competency submitted report in which he stated of the period offenses during alleged Mrs. delusions, hallucinations, S. was at times with psychotic, as- “grossly behavior, addition, saultive and violent and in was felt be to and angry and “She has manipulative,” carried consistent fairly diagnosis of with to her schizophrenia condition and respect psychiatric appeared to be at the time of interview of her.” Asked grossly psychotic my whether she had “some to observe or to remember incapacity correctly correctly answered, the events of that he “I believe possible, that is night,” yes.” decided, McCaughan pro- 3 At the Civil time Code of Procedure section 1880 disqualification vided persons for “who are of unsound mind at the time of their ” production portion superseded That examination.... section has been (see 1880), Evidence Code section 701 Law Revision Com. comment to former § requires “only prospective capacity new section the court to determine witness’ (Law understanding duty to to communicate his of the tell the truth” Revision 702, however, 701). testimony Com. comment to renders of a Section witness § concerning particular knowledge personal matter inadmissible “unless he has matter,” (Law capacity this and to perceive assumes “the to recollect.” Revision Thus, alleged correctly Com. comment an to incapacity observe to re- § correctly goes (See personal knowledge member issue of 702. under section Jefferson, 26.2; (June supp.) v. Eastmon Cal. Evidence Benchbook cf. § 510].) 646 *9 be in way of he testified that at times she would By explanation, appar- in ent touch with but his her violence and reality, opinion hallucinating were He testi- “top by states of the was that iceberg.” referring, 18th, to April ques- the fact that on five before the mony, days night tion, Mrs. S. learned her had died she that and became grandfather combative to the extent she had to be into a “sheet and put pack” that taken to a im- locked unit. The she seemed psychiatric following day but the after that she tried to out a window was proved, day jump again put into sheet in the locked unit. The next packings placed records, to day, she threatened to throw a according hospital chair the window. In it his would be “to opinion, unlikely her be so psy- one chotic and then to have day recovered from that completely condition the next on the third to back into day only go day psychosis her, times, his own again.” interview with she seemed rational at but then, when death, her own she discussing father’s demonstrated a con- alive, belief her tinuing that father was still to her and seemed visualize casket, father’s body, addition, “right there the office.” In during interview, she heard the from shattering a construction glass pro- door; next ject she as if reacted someone were her of accusing breaking While he glass. was unable to express opinion an as to her state mind during precise basis period rape (except on the alleged hospital record to the effect that before the event she told nurse that she had seen just window), someone out he jump her stated “she was certainly capable was on grossly distorting what going here, around and it would seem to me that was she capable distorting in her mind her, what to it happened capable of on the basis of psychi- atric history, all the symptomatology, I have talked things about.”
This
raised
testimony
question
substantial
as to
S.’s
certainly
Mrs.
competency to observe and relate the events which
wit
she allegedly
nessed. On
hand,
the other
referred
hallucinations
Dr. Kessler
by
at that
did not include
hearing
hallucinations
to the
sub
“relating
very
ject of
421),
(People McCaughan,
inquiry”4
49 Cal.2d at
p.
supra,
and deference to the trial court’s determination
well be
might
required
if it were clear that the court were
the correct
standard.
applying
legal
this is
Unfortunately,
At
in-
not
case.
outset of the
very
chambers hearing, after brief legal argument,
any testimony,
but before
trial,
per-
4 At
being persecuted by
there was evidence
believed
that Mrs. S.
she
engaged
sons
profession,
the medical
that she felt threatened
hallucinations
her,
persons coming
get
sexually
had
into her room
she
been
she believed
not
hospital
molested
evidence was
employee
years
when she was seven
old. This
ruling
before the court at the
its
on competency,
time it made
however.
your
prevent
denying
announced,
the court
“I am
motion to
the...
*10
testifying. However,
woman from
will
I
conduct a
dire
voir
here
presence
chambers outside the
if
the
to see
she understands the
upon
nature,
is,
oath,
if
truth,
that
the
and
she is called
to tell the
and
questions
so
The
forth.”
court asked no
of Dr. Kessler. After Dr.
questioned
solely
testified,
Kessler
the court
Mrs. S.
to as whether she
meaning
the
understood
difference between truth and falsehood and the
of the oath. He made clear that so
as
far
he was concerned he
not
was
dealing
prosecutrix
with Evidence Code section
and that the
had a
Right
appear
jury.”
addition,
“Constitutional
to
this
before
he re
permit
any questions
fused to
defense counsel to ask Mrs. S.
rulings
whatsoever.
and
These
comments raise serious doubt as to
applicable
whether the trial court exercised its discretion on the basis of
legal
Moreover, the
standards.
court’s total refusal to allow cross-
question
competency
examination of Mrs. S. on the
of her
raises serious
(Cf.
questions
procedural
fairness.
Jenkins v. Jenkins
People Murray
109, 113 [
Ill Appellant testimony. asserts error the admission certain During prosecutor defendant, cross-examination of the the was allowed attempted to ask whether the had a defendant ever kissed or to kiss fe- patient, responded negative. male the the defendant Defendant objected interrogation preceded questions, to line which these during prosecutor an in-chambers conference the that he in- indicated produce patient testify tended to as a witness a former who would that attempted had, indeed, defendant on kissed her one occasion and to objected kiss her on another. When defense this counsel evidence prosecutor argued inadmissible, would be that it was relevant to plan “continuing psychiatric patients grati- show to use for sexual fication, favors”; for sexual and the court it would indicated allow the questions theory. on that prosecutor produced
On rebuttal witness who allowed testify, objection, patient again over had she been on the same prosecutrix July again ap- ward as the for three weeks proximately September during three weeks in 1977 and that one of (she periods which) those defendant, could not remember whose practice morning, it was to wake her in the woke her with a She kiss. on the face or on mouth. whether the kiss was did not remember testified also that on her She psychiatrist. She the incident to reported period) remember during she could not (again, another occasion me and the defendant “came over to just was in the washroom when she arm, him me,” and she pushed kiss his hand on her wanted to putting she the incident to her reported psychiatrist. away. Again, instruction limiting This evidence was received without benefit (Cf. (1970) 11 Cal.App.3d as to its relevance. v. Williams the pros- In his Cal.Rptr. 292].) closing argument jury, *11 ecutor made reference to the evidence as repeated “suggesting] character, motive, about his and the other is- something [defendant’s] case,” this sues in as the defendant had an demonstrating floor, “unnatural sex interest” in the on the as credibil- patients lending to the and as ity testimony prosecutrix, demonstrating defendant was not a reliable witness.
A not cross-examine a witness collateral matters party may upon for the purpose of to be thereafter contradicted. eliciting something (1971) 735, 405, v. 4 Cal.3d 744 (People Lavergne Cal.Rptr. 484 [94 (1967) P.2d 77]; Rousseau v. West Coast House Movers 256 Cal. 878, App.2d (1963) 887-888 Garcia v. Cal.Rptr. 655]; [64 Hoffman 530, 212 536-537 Cal.App.2d Cal.Rptr. 98].) This so especially [28 where the matter the seeks to elicit would be inadmissible were it party not for the fortuitous circumstance that the witness lied in response to v. party’s questions. Lavergne, 744. See also (People supra, p. 1035, (1974) v. 40 1042 People Benjamin Cal.App.3d Cal.Rptr. [115 Thus, if 668].) that the defendant had kissed a in proof patient the past admissible, would not be it not be used for the independently pur- pose the defendant’s elicited cross- impeaching testimony on (See Jefferson, (1972) 27.18.) examination. Cal. Evidence Benchbook § Nor is such evidence admissible to show a trait of character to attack (Evid. Code, 787; the defendant’s credibility. People Thompson § 467, (1979) 477 98 Cf. v. Wall Cal.App.3d Cal.Rptr. [159 615]. (1979) 978, 989 on Evid. Cal.Rptr. (relying [157 587] Code, subd. to evidence of support specific admissibility § victim-witness).) instances of conduct on the part a The evidence in question relevant arguably to show that defendant had a to use female propensity for his patients sexual as prosecutor contended, but for that gratification, it was purpose inadmissible. Evidence clearly Code section (a) subdivision pro- (insofar vides as it here) relevant that evidence of a person’s character or character in trait the form of evidence of specific instances of his conduct is inadmissible when offered to his on prove conduct specified occasion. “Section 1101 is concerned with evidence of a per- (i.e., son’s character his propensity disposition to in a certain engage conduct) type that is offered as a basis for an inference that he be- haved in (Law with on conformity particular that character occasion.” Revision Com. comment to to the Referring principle exclu- § conduct, sion it to applies prior criminal the Supreme Court has “(1) that the rule has purposes: three declared avoid the ac- placing offenses, cused position which he must defend against uncharged (2) to guard against that evidence of such probability uncharged acts would prejudice defendant the minds of jurors, promote judicial efficiency by proof extraneous restricting crimes.” (People Thomas 20 Cal.3d
P.2d 433].) *12 defendant not to be convicted because the prosecution can
“‘[A] (or record, (Peo on his prove, prior subsequent) that he is a bad man.’” Thomas, 464, v. 20 3d ple p. Cal. from supra, quoting v. People (1964) 74, Adamson 225 Cal.App.2d 79 Cal.Rptr. 894].) The same [36 conduct, considerations policy appear apply prior where the though criminal, not would be considered reprehensible by the and in jury; any 1101, (a) event section subdivision makes no distinction between crimi- Thus, nal and noncriminal conduct. evidence was legally inadmissible for the of that the had a purpose proving defendant “dispo- sition” or in the “propensity” of conduct of which he engage type was (See accused. 467.) 98 People Thompson, supra, Cal.App.3d prohibition The of section 1101 not does where the evidence apply prior acts is prove relevant to some fact other than the person’s disposi- acts, tion to commit motive, such intent, “such as opportunity, preparation, plan, identity, or absence of knowledge, mistake or acci- (Evid. Code, 1101, dent.” (b).) subd. And the Supreme Court has § declared that an exception to the general rule exists where there is evi- dence of a “common or plan,” design consisting of defendant’s operandi distinctive, “modus or characteristic method of committing crimes,” or of scheme, “‘“a larger or continuing plan, conspiracy, Thomas, the present crime on trial a part.”’” (People supra, 464-465.) 20 Cal. 3d at pp. teaches, “Ordinarily,” Thomas “evidence
463 of the defen- either on the issue would bear a common design plan offense, or the the charged perpetrator dant’s identity offense,” the lan- in view of though intent to commit defendant’s (b) “there be additional may subdivision of section guage (Id., as well. at p. of the exception” applications miscon- prior evidence of defendant’s contend that
The People operandi bearing show “common modus admitted to duct properly contention, which is advanced for the This the issue of his identity.” on in which This is not a situation is without merit. appeal, first time on rather whether or not defendant there is a issue of fact “primary [as to] (Cf. crime charged.” other was the person perpetrator than some (1968) 233, 245 Cal.Rptr. 69 Cal.2d v. Haston People [70 event, identity evidence of misconduct to show 91].) any prior P.2d some where there are “common marks having can be introduced only distinctiveness,” an inference of creating identity; degree (1) the the inference in case two factors: “depends upon strength marks, the num- of individual shared distinctiveness degree of v. Thornton distinctive shared marks.” (People ber of minimally 523 P.2d See also Cal.Rptr. 11 Cal.3d 267]. [114 The facts 602].) v. Alvarez Thus, es- even to meet these criteria. if it were of this case do not begin the victim to sexual intercourse and oral tablished that someone forced it, were did the fact that defendant and the who copulation question 10 months to kiss a female 7 or attempted patient have kissed and *13 bears “common marks” of such distinctive- to the incident prior hardly rather rise inference that it was defendant strong ness as to to give else. than someone marks” require-
We not Thomas as the “common diluting do read nor do we is relied to establish prior upon identity, ment where conduct based on “common an door to evidence open that case as creating read abstract, purpose of some independent evidentiary in the plan” or design Otherwise, the character. of or proclivity than a demonstration other its scope applica- Whatever the rule. would swallow exception to the general tion, however, plan” exception the “common design the under that exception, To be admissible here. application rule has no time, the (2)... similar to remote in be “not too offenses must prior pros- similar to the (3)...committed upon persons charged, offense Thomas, Cal.3d at p. supra, (People witness.” ecuting clear there is some is ‘whether Moreover, admissibility... “the test of connection between that offense and the [prior] one so charged that it may be logically that is one guilty he must be inferred if defendant the Or guilty other. as the matter is stated, sometimes the other offenses. .. are sufficiently possess similar a sufficiently high degree of common features with the act where charged they warrant the infer- ence that the committed the other acts he committed the if defendant (Ibid., act added.) charged. italics While the of the object [Citations.]’” defendant’s prior alleged witness,” acts was “similar to the prosecuting it cannot be said the reasonably that acts were so related in time and so similar in nature as to warrant the inference that if the defendant was of the he guilty was also of the kissing guilty forcible oral copulation and rape. also,
The People argue first time on again appeal, the evidence in dispute demonstrated a modus operandi tending to cor- roborate the of the witness. testimony It difficult prosecuting in understand what be way evidence could admissible for that pur- pose without violating proscription (a), section subdivision since it would tend only to corroborate the testimony prosecuting witness insofar as it tended show that the defendant in fact commit- (See ted the acts to which she testified. People Thompson, supra, 467, 475.) Moreover, Cal.App.3d admissibility character trait evidence on the issue of credibility a witness is governed Evidence Code sections 786 to and nothing appears those sections to sup- its port under the (Ibid.) circumstances here. admissibility present event, cases, Justice Jefferson notes “for sex Thompson, Thomas rejects completely theory that. .. of witness testimony similar to the victim that with prior criminal acts were person com- defendant, mitted admissible to corroborate the independently victim’s as a witness testimony regarding crime de- charged against (Id., fendant.” 479-480. Cf. v. Goodson pp. 290, 295 that evidence admis- (holding 489]
sible on used, the basis of a common or plan be design part, to Here, *14 observed, corroborate the victim’s testimony).) as we have there is no of “common adequate showing design plan,” nor other adequate offense, in time showing and proximity similarity might support introduction of evidence for the purpose corroboration. error,
We conclude that admission of this evidence was that the compounded to the defendant was both the ab resulting prejudice by prosecutorial argument sence instruction limiting
465 invited the consider evidence for jury clearly impermissible pur one, The poses. case a close turning primarily upon case, respective of the two witnesses. In such a credibility principal defense, substantial error “‘any to discredit or to corrobo tending rate the be prosecution, must considered as v. prejudicial.’” (People (1967) 482, 361, Gonzales 66 Cal.2d 494 426 P.2d Cal.Rptr. 929]; [58 (1962) 385, 417, v. 58 Cal.2d 407 People Briggs 374 Cal.Rptr. [24 235, P.2d 257]; (1976) v. Reeder 65 244 People Cal.App.3d [135 (conc. Friedman, J.).) Cal.Rptr. The fairness of the op. by trial 421] was also tainted infirmities procedural discussed I and II parts of this opinion. We are well aware of the obstacles which a prosecutor (see typically confronts in obtaining conviction for v. rape People (1975) 864, 119, Rincon-Pineda 14 Cal.3d 879-882 538 Cal.Rptr. [123 247, P.2d 92 A.L.R.3d 845]), of the difficulties inherent in retrial of a conclude, however, case of this sort. We are forced to that the er rors to which we have adverted were in the sense that prejudicial they caused a VI, miscarriage within the of article justice section meaning 13 of Constitution, the California and that the conviction must be re versed. v. (1956) 818, Watson 46 (People Cal.2d 836 P.2d 243].) [299 conclusion, reached
Having this it is the re- to consider unnecessary retried, contentions of the maining defendant. Since the case must be however, it is appropriate to comment certain issues which upon reoccur.
In our view defendant is correct in that the in a case contending such as this should be provided with instructions more particularized than those contained in CALJIC. As the definition of regards “threats” 261, 3, for purposes of Penal Code section subdivision it is of words, course well established that need not be they expressed by be they may inferred from conduct Flores as well. v. (E.g., People (1944) 62 703 Cal.App.2d 318]; P.2d v. Winters People [145 163 Cal.App.2d 743]; 623 P.2d v. Hunt People [329 v. Cal.App.3d Cal.Rptr. 675]; King People [139 In the 268].) typical case, however, clear, of threat based nor implication fairly upon mal response to overt “If one met in a lonely place by conduct. were else, four men and told his he big to hold hands or to do up anything would be if even if did not doing they reasonable he thing obeyed, Flores, say what would him if they do to he refused.” (People supra, Hunt, at p. The effect that the to the language supra, *15 466 must a
woman’s fear have “reasonable basis in the overt the actions of (id., 200), alleged premised rapist” p. presumably upon typi that atypical involving situation, cal This situation. is an uncommunicated possibly by fears which were not “reasonable” when tested normal stan dards. Mrs. S.’s belief that the defendant could his own instructions strangle sheeted, resisted, have her or he that would strike or her if she arguably advantage Nevertheless, no had basis in fact. “‘One takes who escape punish aof victim’s unreasonable fears of violence should not gullible people by ment than more who cheats false swindler (Commen they statements which should have found incredible....’” tary Kentucky quoted (Ky.App. Code, Pen. Salsman v. Com. 1978) 641.) 638, 565 ward, S.W.2d Within the confines of a mental un part patients likely norm, reasonable fear on the of to be the and presumably general their attendants are aware of that state of affairs. hospital advantage relationship If a of attendant takes his with a patient female mental to have her sexual intercourse with under cir implying cumstances in which he knows that she views his as conduct great bodily accompanied by apparent threat of and immediate harm power execution, of account, and she submits without resistance on that guilty rape though he is may crime even her view of his conduct general
be “unreasonable” course, terms' of Of his standards. (Cf. knowledge may be inferred from all circumstances of the case. People Norrington Cal.App. 932].)5 v. 55 [202 109 P. The foregoing, should be instructed accordance with the at its requirement tention should also be called to the that the threats be “great bodily and immediate harm.”6
Reversed.
Racanelli, J., P. concurred. one in presented 5 The this from which situation facts of case is different defendant as a defense that admits with witness but claims prosecuting intercourse honestly he en- reasonably prosecutrix voluntarily believed consented to that gage in (Cf. People Mayberry (1975) sexual 15 Cal.3d 155 intercourse. v. [125 182; 1337]; Reg. Morgan (1976) 542 P.2d A.C. United States Short U.S.C.M.A. C.M.R. “sheeting” patient may fact a mental 6 The under certain circumstances con- procedure appropriate stitute an medical does not eliminate it category from the “harm”; surgeon statutory presumably relevant a who threatened to cut out patient’s gall did bladder if she not have sexual intercourse with him be guilty rape. would rape requires “great,” be “bodily,” But statute the harm and “immediate.” Thus, appear emotional mental harm would not to suffice. v. Tanner 27,9, 324], Supreme P.2d binding Cal.2d Court characterized the person ropes constituting “bodily with wire harm” meaning within the of a kidnaping greater penalty statute called in cases in which the suf- victim *16 NEWSOM, J. After the same searching troubled consideration this case given I concur in the by my colleagues, and in the judgment it, I reasoning that do not endorse the supports except majority’s implication that the trial court had a to advise counsel duty means proper Code of Civil invoking Procedure section 170.6.
I add that I do not see in what Code of Civil way Procedure sec- involves, affects, tion 170.6 the interests of justice.
A petition for a
27, 1980,
was denied
rehearing
February
respon-
dent’s petition for a
hearing by
Supreme Court was denied March
27, 1980.
bodily
In People
fered
harm.
v. Caudillo
accomplished by great harm,’ the use of ‘threats of bodily Legisla- immediate ture indicated an intent rape force or violence synonomous was not with rape harm,” great means bodily and immediate and that the latter was intended to be than, “something (Id., more 583.) and different from” the p. sug- former. at The court gested a analysis applicable similar (Id., to Penal Code p. section 288a. Assuming deciding without that a could sheeting find a threat of satisfy case, statutory requirements particular in a its attention should at least be drawn to the issues involved.