Opinion
As Modified on Denial of Rehearing July 16, 1968.
For Opinion on Hearing, See 73 Cal.Rptr. 547, 447 P.2d 939.
Mitchell W. Egers, Los Angeles, under appointment by the Court of Appeal, for appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Philip M. Rosten, Deputy Atty. Gen., for respondent.
KAUS, Presiding Justice.
After a submission on the transcript of the preliminary hearing defendant was convicted of burglary and placed on five years' probation, conditioned on a lengthy jail term. (Pen.Code, § 459.) The only contention on appeal is that the evidence is insufficient to warrant an inference that at the time of the entry he intended to commit rape, as found by the trial court.
When the case was called for trial the information charged defendant with the entry and the intent 'to comit a felony and theft.' The prosecution then moved to strike the words 'and theft' and to replace them with the words 'to wit, rape in violation of section 216 [sic], subdivision three.' The motion was granted. The court, however, in physically amending the document neglected to strike the words 'and theft.' People v. Westbrook,
People v. Soto,This finding is not supported by the evidence. The only witness was Miss or Mrs. M. On May 16, 1967, she awoke at 2:55 A.M. to find defendant in bed with her. He was fondling her private parts with his hands. The victim's cautious first reaction was to ask: 'Who are you?' Defendant said that he was the man from downstairs and that the 'man with the magazines' had let him in. M. got out of bed, put on her robe and said: 'You cannot stay here. You must leave.' Defendant started to walk toward the door. After a little conversation defendant and M. shook hands. Defendant apologized: 'I'm sorry if I have inconvenienced you,' and left. M. slammed the door behind him. She later discovered that the screen had been removed from the bathroom window. Before retiring, she had shut all her doors.
No one can quarrel with the proposition that what matters is defendant's intent at the time of the entry and that this intent may be--indeed except in the rarest of cases must be--proved by circumstantial evidence. Unquestionably, when defendant climbed through the bathroom window he had sex on his mind. He may even have intended a violation of subdivision 5 of section 261 of the Penal Code. ('* * * 5. Where she is at the time unconscious of the nature of the act, and this is known to the accused.') The felony referred to in the information was, however, forcible rape and so was the finding by the court. Everything done by defendant after entry points away from forcible rape and to seduction.
The case is, as defense counsel suggests here and as he argued below, governed by People v. Tidmore, 218 Cal.App.2d 716, 32 Cal.Rptr. 444. There the victim who was alone and asleep heard a noise at 3:00 A. M. A dresser was being moved. She put on the light and saw defendant's face. He looked at her and said nothing. The victim went to the kitchen for a knife. When she returned defendant was gone. Before the trial defendant told several conflicting stories, one of which was that he had gone to the house of the victim, whom he had long admired, to persuade her to have intercourse with him.
Another division of this court reversed, saying: 'An analysis of the evidence in the light most favorable to the People compels the conclusion that nothing more was shown as to the defendant's intent than that he desired to have sexual intercourse with Mrs. Hughes. While his conduct was reprehensible, there was no proof that he intended to accomplish his purpose by use of force rather than by persuasion.' (Ibid., p. 720, 32 Cal.Rptr. p. 446.)
The Attorney General attempts to distinguish Tidmore by asserting that there 'the prosecution could produce no more evidence than the fact that appellant tried to enter a bedroom window at 3:00 in the morning.' Actually, there was also the de fendant's The trial court stated that it believed that while defendant entered with rape on his mind 'something occurred during the course of this transaction while he was in bed with this woman, and for some reason or other, he abandoned his plan.' In other words, the trial court refused to draw the inference of an intended seduction from defendant's later conduct in bed. This it had the right to do, but disregard of what happened in bed obviously adds nothing to the People's case--it simply makes it even more analogous to Tidmore.
To be sure, very little additional evidence would suffice. In People v. Padilla, 210 Cal.App.2d 541, 26 Cal.Rptr. 765, we have the now familiar nighttime entry into a lady's bedroom. Padilla pushed a handkerchief over her face. She struggled to get free and started to scream. Exit Padilla, leaving behind a 'pair of lady's undergarments and a handkerchief' which did not belong to the victim. The judgment was affirmed in reliance on People v. Nye, 38 Cal.2d 34, 37, 237 P.2d 1, 3: 'When a strange man enters a woman's bedroom, covers her mouth with his hand, grasps her wrist while she screams and kicks, releases her when she bites his hand, and makes no effort to take any property, it is reasonable to infer that he intended to commit rape * * *.'
Thus any evidence of force, however slight--probably even any evidence of readiness to use force--can be used to give color to the entry, but such evidence is precisely what we do not have here.
The significance of the undergarments is not clear. Possibly the court thought that they might have been intended to throttle the victim if she screamed.
It only remains to deal with People v. Kittrelle, 102 Cal.App.2d 149, 227 P.2d 38, relied on by the People throughout this case. There the victim awoke when she felt her bedclothing being lifted at the foot of her bed. The intruder fled. The court said: 'The evidence and the reasonable inferences therefrom justify the conclusion that defendant entered the house with the intent to commit larceny and rape.' If that statement were a holding it would do no more than put Kittrelle in total conflict with Tidmore. It is, however, only dictum. The People had charged Kittrelle with an entry to commit theft and rape. On appeal he contended that, having chosen to charge him with both intents, the People had to prove both and that they had not proved the intent to commit rape. That contention was answered by pointing to the rule that where 'a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count * * *' (People v. Frank, 28 Cal. 507, 513), that in such a case the People need not elect on which act to try the defendant and that the court can properly instruct the jury that a conviction could be sustained if the evidence showed that the defendant committed any of the acts. (People v. Swaile, 12 Cal.App. 192, 195, 107 P. 134.) That having been said, it was quite unnecessary to the decision to add that the People had proved an intent to commit both felonies.
Much later, in People v. Failla, 64 Cal.2d 560, 567-568, 51 Cal.Rptr. 103, 414 P.2d 39, it was held that in a burglary case the jury need not agree on the particular felony the defendant intended to commit at the time of his entry.
The judgment (order granting probation) is reversed.
HUFSTEDLER and STEPHENS, JJ., concur.