Opinion
Rehearing Denied Dec. 7, 1965.
For Opinion on Hearing, see 51 Cal.Rptr. 103, 414 P.2d 39.
Minsky, Garber & Rudof, Los Angeles, for appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Paul N. Wenger, Deputy Atty. Gen., for respondent.
KAUS, Justice.
Defendant was found guilty of five counts of burglary (Pen.Code, § 459) and one count of kidnapping (Pen.Code, § 207.) He was also charged with three prior felony convictions, which he admitted. Thereafter, he was tried by a jury, found guilty on all counts and sentenced to state prison for the terms prescribed by law, all sentences to run consecutively. He appeals from the judgment.
It is not necessary to relate the facts of the alleged offenses in great detail. It should also be noted that the versions of the victims as to what happened were uncontradicted by defendant, whose defense to each count was an alibi.
The five burglary counts referred to five separate nighttime entries into the apartments of five different victims on various dates between August 14, 1963 and November 13, 1963. Two of the offenses took place on one single night. The kidnapping took place in connection with one of the offenses of that night, October 9, 1963.
The basic pattern followed by defendant varied little. Omitting the names of the victims, this is the evidence.
Count I: He awoke her at 5:00 a. m. on November 1, 1963, said he had a knife, threatened to kill her if she screamed and said he wanted to kiss her private parts and that he wanted her to kiss his. She offered some resistance, and suggested they talk. He made some attempt at mutual oral copulation but when informed that the victim was menstruating, he merely masturbated. He then left. Afterwards the victim discovered that her wallet had been taken out of her purse which she had left in the bathroom. She found it on the living room floor. No money was taken. It had only contained coins when she went to sleep.
Count II: Defendant entered the victim's apartment at 2:50 a. m. She had a roommate. Threatening to kill her if she did not comply, defendant forced her to go into another room. He said he had a gun. Count III: Defendant entered her apartment at 4:00 a. m. He said he had a knife and: 'I want you to play with me.' When she resisted he said: 'Would you like me to screw you?' She declined. He then forced her to masturbate him and left.
Count IV: Defendant entered the victim's apartment at 2:15 a. m. and awakened her. He had a knife and said that he did not want to have intercourse, he just wanted to kiss her. At the same time he placed his hand on her private parts. The victim started to scream and defendant fled.
Count V: Defendant, wearing only underwear, removed the screen from the window in the apartment of the 70 year old victim, stood on the windowsill on one foot and extended the other foot into the room. The victim awakened and he said: 'I want you.' She started to scream and defendant left. He was arrested by the police very shortly after leaving the apartment of the victim.
Defendant's first contention is that the court, on its own motion, should have defined the phrase 'or any felony' which was contained in the instruction defining burglary in the terms of the statute (Pen.Code, § 459.) It is urged that since on each burglary count the jury had to find his intent at the moment of entry circumstantially from his conduct and words, corroborated by such conduct and words on the other counts charged, and since it may certainly be inferred from such conduct and words that defendant's intentions may have been entirely legal, though dishonorable, or at most pointed toward misdemeanors, such as section 314, subd. 1 of the Penal Code (indecent exposure) or section 242 (battery), the jury should have been informed just what conduct which defendant may have intended at the moment of entry would amount to felonies. As the matter stood the jury could have found that all defendant intended to do was to expose himself, yet not knowing that this was a misdemeanor only, have concluded that it was a felony and found him guilty of burglary.
It is also noted that although defendant's acts committed after the various entries were disgusting, degrading and reprehensible, as a would-be rapist he was easily dissuaded. To what extent he may have been aware of his apparent inability to force himself on his victims, we do not know, but the possibility that as far as sexual intercourse is concerned, he never contemplated anything but consensual acts, cannot be overlooked. (See People v. Tidmore, 218 Cal.App.2d 716, 720, 32 Cal.Rptr. 444.)
Defendant's argument derives considerable force from People v. Chavez, 37 Cal.2d 656, 234 P.2d 632, a felony-murder case, where the Supreme Court certainly intimated that on a proper occasion the felonies which would have made the act of entering a burglary must be defined. No error was found in Chavez because there was no evidence that he intended to commit any felonies except rape and murder and those were defined by the court. (Ibid., p. 668, 234 P.2d 632.) (See also People v. Corral, 60 Cal.App.2d 66, 71-72, 140 P.2d 172.)
In reply to defendant's argument as thus outlined, the Attorney General suggested that on the facts of the present case it was obvious at the trial to all parties concerned that whatever defendant may have done after entry, his intentions at the time of entry were centered on a violation of section 288a of the Penal Code. Since this argument was not supportable from the normal record then before us, at least with respect to Counts II, III and V, we ordered the record augmented by the transcripts of the prosecution's opening statement and the arguments of the parties.
We find that while in the prosecutor's opening statement he suggested to the jury that he would prove that the entry with respect to Counts I, II, IV and V was A similar problem was before this court in People v. Hudgins, 236 Cal.App.2d 578. 46 Cal.Rptr. 199. Hudgins was convicted of second degree murder. The trial court had instructed the jury that the killing was second degree murder if it was 'done in the perpetration or attempt to perpetrate a felony other than arson, rape, robbery, burglary or mayhem.' We said: 'The error * * * is conspicuous. The jury was asked to determine, among other things, whether the killing of Simmons was in the perpetration or attempt to perpetrate a felony, other than those named. What is a felony? What felony did the court have in mind? Does the jury know that a crime is a felony if it is punishable by death or imprisonment in a state prison, and does it know what crimes are punishable in this manner? So much for the inherent error in the instruction. * * * In another case, under different facts, the instruction could be seriously prejudicial, but there is no reason to believe that the error resulted in harm to appellant.'
236 A.C.A. 636.
To say that Failla's conduct on most of the occasions was bizarre, is an understatement. Unquestionably the evidence on each count was sufficient to submit the question of burglary to a property instructed jury. In People v. Kittrelle, 102 Cal.App.2d 149, 227 P.2d 38, defendant entered a woman's bedroom at 5:00 a. m. He fled and abandoned whatever purpose he had in mind when he lifted her bed covers and apparently realized that she was awake. This was held sufficient to justify the conclusion that he had entered the house with the intent to commit larceny and rape.
But sufficiency of the evidence is not our problem. Defendant does not challenge it. Indeed defendant has suggested an imposing array of felonies which a jury might properly find he intended at the time of the various entries. The point is that the most salient acts after entry, which possibly could be all that defendant ever intended as far as sexual activities are concerned, were not felonious and that whatever felonies defendant did commit--the kidnapping for example--may not have been intended at the time of entry; yet an uninstructed jury might easily assume that masturbation, particularly under the circumstances shown in Count III, is a felony.
It is our opinion that where the circumstances attending an entry permit an inference that defendant at the time of such entry intended to commit one or more felonies, but also permit an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, but which misdemeanors or acts a jury may believe are felonies, the court must inform the jury what felonies the range of the evidence justifies them in inferring as being intended by defendant at the time of the entry and should further inform the jury that such are the only felonies they may consider.
It is also our opinion that, at least in the case at bench, such an instruction concerned a principle of law which was 'closely and openly connected with the facts of the case before the court,' and had to be given by the court on its own motion. (People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 125.)
We have not overlooked the fact that defense counsel, who for sound tactical reasons had decided to present no defense other than alibi, conceded in his closing argument that whoever entered these bedrooms, committed burglaries. Once the jury had decided that the entrant was defendant, it This does not necessarily mean that the failure to give the instruction was prejudicial as to each count. We are satisfied that as far as Counts I and II are concerned the jury never entered into the area of speculation concerning defendant's more eccentric intents, because the evidence shows clearly that before entering the respective bedrooms of the two women he attempted to steal money from the victim of Count I and did actually steal money from the victim of Count II. We doubt whether any jury would find that these thefts were mere crimes of opportunity committed after an entry made with nothing but sex on his mind. A different result does not seem probable even had the court not committed the error discussed.
Count I: When the victim retired her wallet was in her purse which was in the bathroom. When the defendant left, he walked out through the hall. After he was gone the wallet found on the living room floor, rifled, with its contents in disarray near it.
Defendant's next point is that the jury should have been instructed that in order to find him guilty of burglary, it was necessary for all of the jurors to agree what felony or felonies he intended at the time of his entry. This contention is not supported by citation of any authority and we have found none. It is of course perfectly true that defendant had the right that the information should charge the particular felony or felonies intended at the time of each entry, People v. Myers, 206 Cal. 480, 482, 275 P. 219. The first five counts of the information on which defendant was tried merely charge that defendant entered the various premises 'with the intent then and there and therein unlawfully and feloniously to commit a felony and theft.' The objection could have been raised by demurrer; since it was not, it was waived. (People v. Sipult, 234 A.C.A. 1012, 1017, fn. 3, 44 Cal.Rptr. 846.) As we see it the rule requiring specification of the felony or felonies intended at the time of entry is a rule designed to give the accused notice of the offense of which he is accused (Pen.Code, § 954; cf. People v. Clenney, 165 Cal.App.2d 241, 251, 331 P.2d 696), not a rule deriving from any theory that an entry with intent to commit rape is a different crime from the same entry with intent to commit an act in violation of section 288a of the Penal Code. 'An entry may be made with intent to commit two or more felonies, but that would constitute only one burglary.' (People v. Hall, 94 Cal. 595, 597, 30 P. 67.) In point are the cases in which it has been held that to support a conviction of first degree murder it is not necessary that the jury agree on the same theory of such murder, as long as each juror agreed that the defendant was guilty. (People v. Hardenbrook, 48 Cal.2d 345, 353, 309 P.2d 424; People v. Chavez, 37 Cal.2d 656, 670-672, 234 P.2d 632.)
There is of course a line of decisions exemplified by People v. Scofield, 203 Cal. 703, 265 P. 914, which holds that when a defendant is charged with violation of a statute which makes several different acts punishable and where evidence sufficient to support one charged act might be entirely unrelated to and insufficient to support another, the jury must agree, and be instructed to agree, which portion of the statute the defendant has violated. (See also People v. Dutra, 75 Cal.App.2d 311, 321-322, 171 P.2d 41 and People v. McMillan, Defendant's next contention is that with respect to Count V he was entitled to an instruction defining the offense of attempted burglary. Since we reverse the conviction on that count, all that needs to be said is that the uncontradicted and unimpeached testimony of the victim showed that before he withdrew, one of defendant's feet was on the windowsill and the other in the air above a table inside the room. It is the law that a sufficient entry is made when any part of the body of the burglar is inside the premises. (People v. Allison, 200 Cal. 404, 407, 253 P. 318.) It is of course immaterial that defendant abandoned the commission of the felony he intended at the time of entry. The offense was complete when he entered. (People v. Hall, 94 Cal. 595, 597, 30 P. 7; People v. Stewart, 113 Cal.App.2d 687, 691, 248 P.2d 768.)
Complaint is made that defendant's trial counsel was so incompetent as to make the judgment reversible under the doctrine of People v. Ibarra, 60 Cal.2d 460, 464-465, 34 Cal.Rptr. 863, 386 P.2d 487. In particular, it is charged that counsel's failure to request certain instructions was a lack of assistance reaching constitutional proportions. We will take these matters up in the order presented:
No instruction was requested to the effect that the testimony of the prosecuting witness in a trial for a sex offense should be carefully examined and that accusations of that nature are easily made and difficult to disprove. As a matter of fact, where proper, such an instruction should be given by the court on its own motion. We will assume that it was error not to give it. It is established, however, that such error is not always prejudicial. People v. Wein, 50 Cal.2d 383, 406, 326 P.2d 457, 470, seems precisely in point: 'Here, seven of the eight prosecuting witnesses testified with a high degree of certainty as to defendant's identification and criminal acts. Their testimony revealed a set pattern in which their assailant operated. To this extent their stories were mutually corroborative. On the whole, their narrations were completely consistent in all important respects. * * *' (Ibid., p. 406, 326 P.2d p. 470.) We do not believe that the error was prejudicial.
It is urged that counsel should have requested an instruction defining the word 'wilfully' as used in the instruction concerning kidnapping. No such word appears in the two instructions relating to kidnapping which were CALJIC 651 and 652 respectively.
It is urged that an instruction defining 'deadly weapon' should have been requested, because that term was used by the court in its definition of burglary of the first degree. Inasmuch as it is undisputed that all the entries were of an inhabited dwelling at night, the error is immaterial.
Finally, defendant contends that the trial court should have certified him as a mentally disordered sex offender pursuant to Welfare and Institutions Code, section 5501. Reliance is placed on People v. Westbrook, 62 Cal.2d 197, 205-206, 41 Cal.Rptr. 809, 397 P.2d 545.
As we read Westbrook, it finds error in the failure of the superior court to proceed properly when Westbrook was referred to the psychiatric department as a mentally ill person. (Welf. & Inst.Code, § People v. Barnett,
People v. Jackson,Defendant also contends that the court should not have imposed double punishment on Count II and Count VI, both of which related to the same victim. (Pen.Code, § 654.) In People v. McFarland, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449 double punishment was imposed for burglary and grand theft committed after the entry on which the burglary conviction was based. Although in that case the court held double punishment to be erroneous, its discussion is instructive: 'The evidence, as we have seen, is sufficient to support convictions both of burglary and of grand theft with respect to the taking of the air compressor from the hospital. The inference which the jury was permitted to draw in that regard was that defendant entered the hospital with intent to steal and that the taking of the air compressor was the culmination of that intent. The record contains nothing indicating that he entered the hospital with intent to commit some crime other than theft. In these circumstances the only reasonable conclusion is that the entry of the hospital and the taking of the air compressor were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetuating the theft.' (Ibid., p. 762, 26 Cal.Rptr. p. 481, 376 P.2d p. 457. Emphasis added.)
In the present case it is clear that the court was justified in finding that defendant entered the premises with a dual intent, to steal and to perform some kind of sex act, whether or not felonious.
The kidnapping was committed in furtherance of this latter intent only. We do not know whether the emphasized portion of the opinion in McFarland is meant to indicate that double punishment would only be proper if theft was not one of the crimes intended at the time of entry, or whether such punishment could also be imposed if the entry was made with a dual intent, but we believe that both the language of the cases and the philosophy evidenced by the Supreme Court in Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, preclude the application of section 654 in the case at bar. In Neal it was emphasized that double punishment is not forbidden where a defendant commits an act of violence with the intent to harm more than one person. (Ibid., p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) Here we do not have multiple victims, but multiple intents. If we were to say that defendant cannot suffer double punishment in the present case, we would have to be prepared to say that a burglar who enters premises intending to rob, assault, kidnap, rape and maim his victim can only suffer one punishment. We are not. (See also People v. Fields, 190 Cal.App.2d 515, 518-519, 12 Cal.Rptr. 249.)
Turning to the language of Neal, the rule there announced was summarized by the Supreme Court in McFarland as follows: 'It was there pointed out, upon an analysis of several earlier decisions, that the prohibition of the statute against double punishment applies not only where 'one 'act' in the ordinary sense' is involved but also where there is a 'course of conduct' which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654; that the divisibility of a course of conduct depends upon the intent and objective of the defendant; and that if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more The judgment is reversed as to Counts III, IV and V and in all other respects is affirmed.
SHINN, P. J., and FORD, J., concur.
Count II: Defendant was in parts of the apartment other than the bedroom for quite a while before entering the bedroom. When defendant forced the victim into the other room she sat down on a chair on which her wallet was lying. From that moment on until the defendant left she described his movements and her activities in some detail and there is no activity on the part of defendant with respect to the wallet. Although she lost consciousness for a few seconds after she was struck, it appears that she saw him leave as she collapsed. At one point earlier he had put his hand in his pocket and said: 'Here I have got some money for you.'