*1 No. [Crim. 15230. In Bank. Oct. 1971.] PEOPLE,
THE Plaintiff and Respondent, BAIN,
WILLIAM L. Defendant and Appellant.
Counsel Portman, Defender, Sheldon Public A. Green and Rose Elizabeth Terry Bird, Defenders, Public for Defendant and Deputy Appellant. General, Thomas C. R. Don Jacob- Lynch, Attorney Robert Granucci and son, General, for Plaintiff and Deputy Attorneys Respondent.
Opinion (Pen. of forcible rape was convicted PETERS, J. by jury William L. Bain 236), Code, oral 3), (Pen. Code, §261, § subd. false imprisonment Code, 288a) a concealed dirk (Pen. and possession § copulation Code, of kid- 12020). The found him not (Pen. guilty dagger § Code, 207). (Pen. judgment sentencing He from appeals § naping the convictions. in state for each of him concurrent terms prison a married woman testimony prosecutrix, 24-year-old with children, as be summarized follows: On the morning January three may 26, 1969, she a bus which left the Francisco was on San Greyhound a.m., to Moffett about bound for San Jose. She was traveling terminal Field, Jose, stationed a naval near her brother was installation San where lived with her at the Moffett and his wife. The brother had meet agreed Field bus stop.
The defendant San terminal asked boarded the bus Francisco her; to sit next she “I He about the book don’t care.” asked responded, she and she showed him the title on the cover. Defendant reading then asked where she was Field.” she “Moffett replied going
He asked about her After she “I am Samoan.” nationality replied awhile, she fell be her reading awakened only asleep pressure ribs from defendant’s elbow. said me” She “Excuse and moved closer the window. These were the events both the bus. while were on only Field, Moffett she off discovered that
When the bus arrived at got She was not there. said out loud “Is there a booth around her brother phone defendant, bus, had here?” and who also off directed her to gotten booth. She was aware that defendant was her because nearby following had her suitcase twice hit his In the her booth she started dial leg. phone but brother’s number defendant door interrupted by open pushing the booth. that he wanted to use the she removed her Thinking phone, *5 and went to another money booth. nearby time, however,
Defendant in the door the booth. This again pushed he brandished a knife in face front her and threatened slash her to unless she came with ribs, him. With the knife along in her she placed lot, went with defendant to a he where tried to parking enter several unsuccessful, cars. When these parked he took her to a attempts proved dark alcove a behind restaurant. alcove,
In the defendant forced the to prosecutrix three engage acts of sexual and separate intercourse one act of oral copulation. cross-examination, Under stated that she had not been prosecutrix her on wearing wedding night of incident. ring She explained she had removed the while washing clothes that and had for- ring day gotten to back on her put ring She did not finger. run from attempt defendant, had, even though he one walked 10 feet point, approximately her; away from his knife was in his then pocket and there were and houses a motel Nor did she nearby. call for even she help, had though passed two while defendant was persons her. following
Defendant’s be testimony may summarized as follows: He met the prose- cutrix at the bus terminal and attempted her After “pick up.” conversing she nationality, agreed book she was and her Samoan reading
about the her bus to San Jose. to allow him on the accompany was time asked if she were on bus he her together, During they no; she said talked and necking married and they engaged petting. This on She leg. included and defendant’s his hand her placing kissing was “responsive.” bus
Defendant off the with him carrying got together, prosecutrix her suitcase. After she indicated that she did want him not to accompany home, her to her relative’s to find a secluded to “make they agreed place not, out.” tried to He find an could to the car but went open they alcove, restaurant where they in a act of sexual intercourse. engaged single She willingly engaged events, in the act. In his version of the defendant made mention no of an act of oral copulation. ended, Steven
Just about the time that the sexual encounter Police Officer Clifford, was came dog, who with his upon patrolling police prosecutrix and defendant. The that he voices from coming testified heard policeman alcove, the restaurant he where observed man and woman standing. When he called them to from defendant upon building, step away forward, date, came “This We’re any- man. not saying, only doing my She’s thing wrong. date.” just my alcove, then ran up who had been standing
The prosecutrix, words, “was cry- where In the officer’s she very upset, standing. arm began .... She ahold of me and my ing grabbed pull hurt ‘He’s choke me around the neck. Continuously shouting, going ” out, me. He’s me and look he’s a knife.’ raped got searched defendant. he arrested and further testified that Clifford Officer *6 coat. defendant’s trench According knife the of He found a in pocket knife, like a Clifford, which blade of the pocketknife the opens Officer was and in locked the point and in the position; locks place, open hand, Defendant, testi- the other defendant’s on facing pocket. upward found claimed Clifford it. He the knife was closed when Officer fied that area of San for the dangerous that he carried weapon protection had seen that the prosecutrix where he lived. He further stated Francisco he bus, of left and the knife on the when it out his hip pocket slipped in the it trench coat placed pocket. blade, which slightly Its measures overall. is 11 inches long
The knife beveled the sides are symmetrical. Although five less than inches long, side, other the sides down the way side half the entire on one length locked into an open a and can be posi- blade comes to are dull. The point inch in length, one-half are tion. There handguards approximately the blade the handle. located where meets that the trial, before the
In the course of asserted prosecutor stated had fabricated he story; defendant his counsel the “pick-up” man, he, defendant that as a black would not be a black prosecuting unless he believed the man to be he attacked the integrity personally guilty; defender; and he of the defense and the office of the attorney public referred to racial matters. repeatedly
Defense counsel to the statements about a fabricated defense objected and the belief in defendant’s expression personal guilt. didHe not to the attack on his did he to the object nor integrity; object racial comments. Defense counsel also made about the racial comments of the case. aspects claim fabrication was made as as early by prosecution
voir dire when alluded to the three-month between period prosecutor the incident and the trial and asked a he was juror whether prospective aware that the defendant “had a lot of chance about to think it can to, state he wants . .” . indicated he did anything juror not So, said, understand words, “In other this question. prosecutor thing occurred months .... He’s had lot a ago] [three of time to get This of a lawyer.” implication drummed defense without story up passed objection defender. public
However, when the prosecutor the theme in his expanded closing he argument, was defense challenged by counsel. The stated to prosecutor the jury: “You might ‘The say yourself, defendant’s a good got story.’ Did you think he was come going here without story? He’s good had-how .... I long don’t want prepare imply my colleague here, that he told him what to but has the say, assistance a lawyer.”
When statement, defense counsel after objected this did judge not reprimand prosecutor, instead he told the that defense counsel had acted “certainly as an properly he’s attorney his client defending well. He’s not drumming stories.” The up any responded I said was that did “[W]hat they him come in without a expect story? *7 And I’ve been a lawyer that enough don’t hire long people lawyers just give to them to money make them rich. I’m saying because he merely had a lawyer—that’s what fits, I’m Now if shoe saying. he can wear it.”
The mistrial, defender renewed his and moved for objection public denied,
which the counsel had conducted the that defense judge telling himself at all times. “properly ethically” his rebuttal a fabricated in story to the theme of returned prosecutor word the use of the “ejacu- attention to defendant’s by drawing argument He left with the his sexual relations when prosecutrix. late” describing coached, had been defendant clear with the that the the impression that word.” “I wonder where he picked up by commenting to the defendant several times that he believed stated prosecutor web a tight wove these statements into be of the crimes He guilty charged. both black. and defendant were with comments the fact that he referring in his closing argument, This occurred after the defender suggested, public that the brother had not been called explain ap- prosecutrix bus at the in her about the story meeting parent inconsistency arranged ‘Well, “the . . we’ve because themselves . police say got nigger stop trial,’ and that do it . .” should until . rapist defender, the to this comment by prose- response public Evidently something: me tell stated to the “Now let jury: you in his rebuttal cutor man, I am at it seems me that I white to As I look this look you? Do is. do think that I didn’t read before report blacker than he Now you was think I he innocent really Do if you thought signed? Complaint discussion, counsel but after short objected that—” Defense this point So, went on: trial told the proceed. prosecutor judge prosecutor this didn’t do my theory, I the evidence in case you thought support “[I]f I this . . think I could out think would man? . Don’t you go prosecute this whole own and make There one other Black my money? lawyer me; that I town besides so ... think in own minds would do you your I believe it. The defend- be case because that? don’t just prosecuting . . . We out ant doesn’t. Bain I understand each came other. me, kind same of area. He I don’t understands understands approve conduct, of this kind of too.” to, the which were objected to these comments
In addition defense lack of about race and the counsel’s other remarks made numerous he referred did not to. For object example, which defense counsel integrity, also vilified the defend- defense the “Golden He Boy.” public counsel as brick at a dogs “I understand if throw a pack er’s office several times: you them, All “These never change. hit one of he’ll holler.” you guys their tactics and do the same counsels and discuss get together defense I tried him?” Do think this is the first case thing. against you he told Defense counsel was also embroiled this rancorous exchange; *8 847 an valid “shut as the latter was voicing up,” apparently prosecutor to a on cross-examination. objection question between counsel is further illus-
The acrimonious clash of personalities For he trated other comments about race. by example, prosecutor’s on the defense counsel’s cross-examination of the commented complainant the reason she had not been her on wearing ring concerning why wedding of the night incident. stated: prosecutor places “[Defense counsel] a lot ... I remember mother who was married emphasis rings. my 46 I never owned a and . . . . . . never even owned a years ring, different, ... Now does that mean that we pair, are something we are animals because we don’t wear But the Golden rings? Boy says to have you’re if married. White rings you’re supposed always people have them.” offered no admonition to the jurors
The trial entire judge during trial, that defense counsel was not say “drumming up any except instructions, the course of its stories.” In court stated that counsel’s was not evidence. summation that defense by prosecutor implication unsupported Nelson, v. (People
counsel fabricated a defense constitutes misconduct. Talle, 238, 385]; People v. 111 Cal. 224 254 Cal.App.2d Cal.Rptr. [36 Nolan, 650, 633]; 126 People 674-677 P.2d App.2d Cal.App. [245 v. Charlie, 623, 880]; 411, v. 34 414-415 P.2d Cal.App. [14 703]; Annot., 508, 577-579.) first, At P. see 99 A.L.R.2d prose [167 cutor hinted have fabri that the defendant and his counsel merely might cated the defense the interval between arrest and trial. he Although during then disclaimed intent followed the so any immediately imply, “but disclaimer with he has the assistance of counsel.” After the seeming stories,” said that defense judge counsel was not any “drumming up his own “if that shoe prosecutor misconduct compounded by quipping, fits, he can wear it.” claim that defense counsel fabricated evidence to
There is no support defendant, the evidence is the defense. To the contrary, undisputed arrest, was his “date.” his claimed that the witness complaining prior draw reasonable wide latitude is any Although given Beivelman, 60, Cal.2d (People inference from the 76-77 evidence 913]), the claim of there is no basis for Cal.Rptr. counsel, that effect and the comment to fabrication defense be deemed must misconduct.
848 belief in a personal opinion
Nor may prosecutor express will substantial that jurors interpret defendant’s where there is danger guilt, command, other at the this as based on information being prosecutor’s is acute when the than adduced at trial. The danger prosecutor evidence that it based solely his and does not state offers opinion explicitly (1952) In v. Kirkes 39 People from the evidence at trial. inferences 1], P.2d this “The classic of the Cal.2d 719 court said: expression [249 34 People Edgar, rule in this statement in v. oft-quoted Cal.App. appears 459, 468 declared that he P. ‘When the district attorney [167 891]: would not man he did not believe to be he any guilty thereby prosecute his of the defendant in wrongfully placed personal the opinion guilt evidence in the case. He was to the that it was argue privileged jury his formed from deductions from made the evidence adduced at the opinion [citation]; trial that the defendant was of the crime but guilty charged his declaration to the that he would not jury man whom he prosecute any did not believe to be was tantamount to an assertion that he be guilty lieved in the defendant at guilt of the very inception prosecution; such belief necessarily must have been founded the result of upon the district attorney’s original independent investigation charge, and therefore in all based, least, likelihood was facts part upon which did not and which could not appear have been shown in perhaps Kirkes, (People evidence.’” v. 719, supra, 723-724.) 39 Cal.2d case, In the instant did not state his merely opinion, prosecutor based drawn from the on inferences evidence. He first that he remarked believed the defendant not to be innocent. Defense counsel ob personally but the court did not sustain the and told the jected objection his next comment was proceed. Although properly referring phrased, his belief that the “evidence” showed defendant’s the thrust of the guilt, to the was following argument that he would not be jury prosecuting unless case believed the personally defendant to be He stated guilty. that he would not have “signed had he not been convinced complaint” that the defendant was not innocent of the crime. Since the complaint trial, the signed statement was bound to in the impress jury before forbidden precise way (People Quigley Kirkes. (1958) Cal. 157 223, 936]; 229 P.2d App.2d (1953) v. Beal [320 Cal.App.2d 100].) After the trial indicated that he would not exercise control judge any over the statements of personal opinion, prosecutor, effect, asked the credence his belief defendant’s from give guilt case, he, man, of the because as a black inception “understood” black the defend- tactic was a defendants.1 This way persuading black could not convince other any ant’s was a sham that person. story *10 counsel instant case in the engaged exchange Both in the epithets. occasion; was he who on more than one it defender was rude public was, trial, first the of race into the in way injected question least, However, the of the went beyond taste. poor response prosecutor the defender’s remarks. A miscon answering public prosecutor’s “started it” duct cannot be on the counsel defense justified ground Kirkes, 719, (People supra, v. Cal.2d with similar 39 725- improprieties. 726; 757, 813]; (1950) v. 34 People Sampsell Cal.2d 765 P.2d [214 Talle, People (1897) 647, 842]; v. Kramer v. People 117 Cal. 650 P. [49 650, 677.) supra, 111 for the to way prosecutor Cal.App.2d proper correct misconduct is and defense counsel to have the trial by object misbehavior admonish the to judge reprimand disregard Kirkes, 719, such (People supra, 725-726.) remarks. v. pp. By counsel, not either reprimanding the trial in the instant case allowed judge the trial to be conducted at an emotional which is destructive ato fair pitch trial. And not counsel, by sustaining of defense objections judge allowed the to make an based on racial argument prejudice and the status of the office—a serious threat public objec- tive deliberation by jurors.
We are satisfied that the misconduct of the prosecutor objected by defense counsel must be held to constitute prejudicial error the circum Watson, stances of the (Cal. Const., 13; instant VI, case. art. People v. § 46 818, Cal.2d 836 243].) In most sex offense cases the alleged of the perpetrator crime and the victim are the sole or alleged witnesses, and principal case, as in the instant there is a conflict sharp between their circumstances, In testimony. there is grave danger these. that misconduct of counsel may scales of In the tip justice. circum case, stances of the instant there is a reasonable that absent probability the prosecutor’s misconduct objected by defense the have jury might reached a different result.
The combination of the two elements of such misconduct—the unsup- assertion that ported the defendant and his counsel fabricated the “pick-up” story the statements of belief in personal defendant’s built guilt, on a racial well have foundation—may in what swayed was other- wise a close case. Similar misconduct has been held in other cases to 1Although defense object counsel did not a second time remarks prosecutor concerning why signed complaint “understanding” his racial man, aof fellow black defendant cannot now objections be deemed to waived have alleged these items of objection, right misconduct. Another judge after the trial one, previous overruled the would have been futile and would possibly have involved a risk antagonizing jurors. Defendant is required not to bear such a risk.
850 defense in of a fabricated reversal: the unsupported implication require Nolan, Talle, 650, 674-677; People v. supra, 111 People v. Cal.App.2d Charlie, 640; 623, supra, v. People supra, Cal.App. Cal.App. 411, 414-415, belief in defendant’s guilt and the statement personal Kirkes, 719; People 34 Cal. Edgar, supra, Cal.2d v. supra, objected 468. In view of our conclusion that misconduct App. error, the mis it not to consider whether constituted reversible is necessary conduct which was not to would be objected prejudicial. defendant’s conviction of
A different problem presented by that as a matter of of a concealed “dirk or It is dagger.” urged *11 possession section the knife is not a “dirk or within the of law dagger” meaning statute, of the Penal Code. which for 12020 provides punish ment of in the or to five up one year county jail years prison, up does not define the term “dirk or dagger.” statutes, “dirk or
As is the usual criminal the term interpreting practice Moreover, be on the is to construed. concealed dagger” strictly possession revolver, of more lethal such as a or person seemingly pistol, weapons, 12025, firearm, more, Code, (Pen. other without ais misdemeanor §§ 12031). In view of the concealed for greater possession possible punishment aof dirk or it would not seem reasonable to conclude that the dagger, used that those terms It should also be out Legislature broadly. pointed the other instruments mentioned in section 12020 are either items no having substantial innocent like a an ordinarily instrument purpose, blackjack; an innocent but or having constructed altered for violent purpose purposes, item, a sawed-off namely, or a an sub- shotgun; highly dangerous explosive stance other than fixed ammunition.2
Further indication that the intended the terms “dirk” and Legislature to be construed “dagger” is found in section 3024 of the Penal strictly Code which increases minimum when for certain felonies punishment the felon at the time of commission the time of arrest felony is armed with a deadly or has such on his person. concealed weapon dirk, statute defines the term to include “deadly “any weapon” dagger inches, . . . knife Thus, blade than five any having ...” longer did not all Legislature include knives within the terms “dirk” and “dagger.” indicates, also, This there is substantial in the significance length of the blade less than five inches. being Ruiz, 502, People
In v. 836], 88 504 P. the court held Cal.App. [263 (whether concealed), sale, etc., 12020 prohibits possession 2 Section or not of all dagger enumerated except dirk, items substance. to the As explosive only possession latter prohibited. items that is concealed is
851 The court was a off dagger. had been filed which bayonet that a partly worn on the knife to be defined as straight has been dagger any “A stated: known commonly what is death of inflicting except which person capable and consist used Dirk and are synonymously knife.’ dagger as a ‘pocket dirk, stiletto, Diet.) etc. (Century as a stabbing weapon, any straight The word fitted for stabbing. consist any weapon primarily They may dirk, stiletto, (Standard term etc. poniard, is a generic covering dagger Dict.)” Shah, 716, 1081], the above
In Cal.App.2d seven-inch with and the court held that a language approval, quoted the blade How- was a because locked in knife dagger place. spring-blade ever, excluded knives from the section felony the Legislature spring-blade it a it section 653k of the Penal Code misde- making when in 1957 adopted knife, definition a concealable switchblade its meanor carry 1957, 355, (Stats. a switchblade included knives. ch. knife spring-blade 999.) (The section was amended in to delete the p. requirement 1959, (Stats. 2278.)) be concealed. ch. knife p. *12 when,
We
set
the above two
adopted
approach
forth in
cases
in
Forrest,
374],
People
haveWe concluded that it is a of fact for the question to determine jury whether knife the instant a “dirk is Like dagger.” knife in folding Forrest, the knife instant case has the hand handguards prevent onto the blade if used slipping as a stabbing the blade weapon. Although Forrest, is shorter than that in it is than that slightly longer of the ordinary Forrest, scout boy knife. Unlike the knife in the blade of the instant knife Forrest found in not have the characteristic thus it does locks place, of its limit the effectiveness “which situations will substantially in many instrument, (67 481.) Accordingly, . . .” Cal.2d at p. use as a stabbing found knife could not be by we the claim that the instant reject to be a “dirk or dagger.” hand,
On the knife in the instant case cannot be held as the other have of law be a “dirk All three of the cases which matter or dagger.” discussed the term “dirk that the term does not include or dagger,” agree what is known as a Like the commonly ordinary pocketknife, pocketknife. folds, the instant knife it be viewed some as too might by although large as a the knife is not so that when folded qualify large pocketknife, it will not lie flat on the bottom the men’s It for the pocket pants. to determine whether the instant knife should be as categorized what is known as a commonly pocketknife.
Because a close of fact is as to whether the in question presented stant knife is a “dirk or misconduct dagger,” objected the defense must also be held with to the convic respect prejudicial tion of violation of section 12020 of the Penal Code. is reversed. judgment J., Tobriner, J., J., Sullivan, C.
Wright, concurred.
MOSK, J. I concur.
However, I find it difficult to follow the in its discussion of the opinion dirk or dagger. (1967) v. Forrest Cal. *13 Purporting rely 67 upon 766, 2d 374], 478 432 P.2d Cal.Rptr. [62 conclude that “it is majority a of fact for the to determine question whether the instant knife is ” ‘dirk or Yet in dagger.’ Forrest the court held the involved majority object was not a dirk or (Id. as matter law. dagger 480.) at In dissent p. my of in that I case insisted the absence of a mathematically statutory precise definition aof dirk or that the dagger nature of the instrument be requires determined the trier of fact. I noted that “the was Legislature unwilling or unable to predict refinements in the developing macabre art of weaponry. terms, It the use of sought, by generic ‘common to the proscribe weapons arsenal,’ criminal’s and left to the trier of fact to ascertain whether a seized comes within the object of (Id. 482.) contraband.” category at p. While it is of some comfort that the have this majority finally agreed factual, is problem should merely aid trial they courts by clearing up confusion from error and resulting previous overrule Forrest. forthrightly
853 reverse the that they to the extent with the majority I concur BURKE, J. oral false forcible imprisonment defendant of of rape, convictions which, in view of misconduct committed for copulation, to defen- issues, been have prejudicial on these may testimony conflicting for defendant’s conviction however, dissent, from the reversal I dant. conflict whatever for there was no or dagger, of a concealed dirk possession have af- could not possibly misconduct issue and the on this verdict. fected the jury’s his arrest defendant uncontradicted that at the time of evidence is
The blade a knife 11 inches whose long concealed on his was person, carrying, dull and not use- the blade’s sides were was 5 inches nearly long. Although for since able the knife was stabbing, for cutting, particularly appropriate hand from one’s its its handguards prevented tip sharply pointed, shaft, and the blade could be locked into down easily place. slipping not de- that Penal Code section 12020 does note majority correctly cases, however, “dirk or have noted that “A has fine dagger.” dagger defined knife which been as to be worn on the any straight person capable death what is known as a knife.’ inflicting except commonly ‘pocket Dirk and are used and consist of dagger synonymously any straight stabbing dirk, stiletto, any Diet.) They may as a etc. consist (Century weapon, Ruiz, added; weapon primarily stabbing.” (Italics People v. 88 for fitted 502, Shah, 716, 836]; People P. see v. Cal.App. [263 Cal.App.2d a 7-inch knife to be a (holding dagger [205 1081] spring-blade Forrest, Thus, because the blade locked 67 Cal.2d place).) 478, 374], 480-481 432 P.2d we stated that dirks or Cal.Rptr. knives are which are daggers for blades either designed stabbing having fixed in an or position into open locking capable place. Accordingly, Forrest we concluded that a knife whose blade did not lock folding into was not a dirk place since “it cannot be held to be a dagger weapon (67 481.) for . . . .” Cal.2d primarily designed stabbing p. above,
As noted the knife found in defendant’s was obviously possession for designed its dull stabbing; rendered it for cutting edge useless other any hold, therefore, I would that the knife was purpose. a dirk or as a dagger law, matter of for no reasonable could have concluded But juror otherwise. *14 even if the were correct in majority to be holding a factual question one, in the instant case the wó1 to the question presented under jury ap instructions derived propriate cases, from the and the foregoing re solved this factual assertedly defendant. question against that the majority suggest misconduct have prosecutor’s tainted may determination of the “dirk jury’s issue. But dagger” the misconduct pertained solely defendant’s on the and other question guilt rape existed. counts, testimony which conflicting sharply related question upon and the belief defendant’s on those counts asserted guilt The counts have fabricated a defense to those that defendant may suggestion whether, factual on uncontra- could have obscured the not simple question facts, dicted defendant a dirk or dagger. possessed not that the would have Since it is reasonably probable acquitted the concealed but for the mis- defendant on weapon charge prosecution Watson, 243]), I (People conduct Cal.2d re- dissent from reversal of conviction rendered on that spectfuly charge.
McComb, J., concurred.