Opinion
For Opinion on Hearing, see 94 Cal. Rptr. 275, 483 P.2d 1227.
Opinion on pages 210-215 omitted
HEARING GRANTED
Albert D. Silverman, by appointment of the Court of Appeal, Canoga Park, for defendant and appellant.
[87 Cal.Rptr. 256]Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence P. Scherb, II, Deputy Atty. Gen., for plaintiff and respondent.
FLEMING, Associate Justice.
Sam Shells, Jr., appeals his conviction by a jury of kidnapping, raping, and orally copulating Dorene K (Pen.Code, §§ 207, 261, subd. 3, 288a), and kidnapping and raping Elizabeth B (Pen.Code, §§ 207, 261, subd. 3).
The rape of Elizabeth occurred at 4:30 a. m. on 8 May 1968 in Los Angeles. From a phone booth at the corner of Pico and Redondo Boulevard she was telephoning her boy friend to pick her up, when defendant appeared outside the booth. He told her to come out of the booth, and when she did he grabbed her arm and led her into an alley behind the drugstore on the corner. After defendant put the blade of a hacksaw against her neck, he told her he would not kill her if she remained quiet, and he then had an act of sexual intercourse with her. Defendant then pulled Elizabeth up the embankment at the end of the alley, and walked down the street. Elizabeth returned to the phone booth and flagged down a police car. She told the police what had happened and drove with them in the direction defendant had taken. Three or four blocks away Elizabeth pointed out defendant to the police. After having been advised of his constitutional rights, defendant said he had been propositioned by Elizabeth and he had paid her five dollars for an act of intercourse. The officers searched Elizabeth's purse and found no money. They found a hacksaw blade in defendant's possession as well as a screwdriver, a hammer, and a pair of gloves.
The rape of Dorene occurred about 6 a. m. on 12 October 1968 in Los Angeles. Dorene got off a bus and was walking down Washington Boulevard when defendant came up behind her and asked if he could walk her home. She replied she could get home by herself, but defendant kept walking behind her until several cars in the vicinity had disappeared, and he then put his arm around her neck and a knife at her throat. He ordered her to cross Washington Boulevard, and when she resisted he threatened to use the knife. In this manner he forced her across the street and behind a garage, and there made her orally copulate and have intercourse with him. Dorene subsequently identified defendant at a police lineup.
There is sufficient evidence to sustain the convictions for rape and oral copulation. However, the convictions for kidnapping must be reversed under the ruling of People v. Daniels, 71 A.C. 1165, 80 Cal.Rptr. 897, 459 P.2d 225, which held that kidnapping, as used in sections 207 and 209 of the Penal Code, does not include movement which is natural and incidental to another crime such as robbery, rape, or assault. The movements here--less than a block for each victim--were incidental to the sexual assaults, a natural part thereof, and plainly motivated by defendant's desire to secure privacy for his assaults. (People v. Schafer, 4 Cal.App.3d 554, 560-561, 84 Cal.Rptr. 464; see also People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206, cited with approval in People v. Daniels, supra, 71 A.C. at p. 1183, 80 Cal.Rptr. 897, 459 P.2d 225; contra People v. Thomas, 3 Cal.App.3d 859, 83 Cal.Rptr. 879 .)
Defendant contends it was prejudicial error to consolidate for trial over his objection the offenses against Dorene with those against Elizabeth because as a consequence of the consolidation the same jury heard evidence of both attacks which except for the consolidation would not have happened. Assuming for argument that evidence of one attack would not be admissible in the separate trial of the other, nevertheless the test of proper joinder is whether the offenses charged are 'connected together in their commission,' are 'different statements of the same offense,' or are 'different offenses of the same class of crimes or offenses.' (Pen.Code, § 954.) [87 Cal.Rptr. 257] The test does not depend on whether evidence of each offense would be separately admissible to prove the others. (People v. McMahon, 116 Cal.App.2d 883, 887, 254 P.2d 903.)
Here, the counts charging kidnapping, rape, and oral copulation of Dorene were properly joined with one another because the offenses were connected in their commission. (People v. Duane, 21 Cal.2d 71, 74-76, 130 P.2d 123; People v. Van De Wouwer, 91 Cal.App.2d 633, 639, 205 P.2d 693; People v. Avery, 64 Cal.App.2d 850, 853-854, 149 P.2d 758; People v. MacDonald, 53 Cal.App. 488, 489-490, 200 P. 491.) The same is true of the counts charging kidnapping and rape of Elizabeth. And the consolidation of the counts relating to Dorene with those relating to Elizabeth was proper because both cases involved charges of the same kind of criminal activity against the same defendant. (People v. Duane, supra, 21 Cal.2d pp. 76-78, 130 P.2d 123; People v. Walker, 112 Cal.App.2d 462, 471, 246 P.2d 1009; People v. Van De Wouwer, supra, 91 Cal.App.2d p. 639, 205 P.2d 693; People v. Avery, supra, 64 Cal.App.2d pp. 853-854, 149 P.2d 758.) The fact that the two attacks occurred five months apart does not render the order of consolidation erroneous (see People v. Feigelman, 65 Cal.App. 319, 320, 223 P. 579), and we find no abuse of discretion in the trial court's order of consolidation. (People v. Duane, supra, 21 Cal.2d p. 78, 130 P.2d 123.)
Defendant's final contention is that the trial court erred in denying his motion for a new trial because the statements of his counsel and the prosecutor showed that he did not receive effective assistance of counsel at his trial. Defendant had been charged with a prior felony conviction for burglary at the time the cases involving Dorene and Elizabeth were consolidated for trial on 15 January 1969. He thereupon denied the prior conviction. Commencing 28 February 1969 defendant was represented by H. Harry Sax, a deputy public defender, and the cases were not tried until 5 June 1969. At the hearing on the motion for a new trial Sax told the trial court he had not investigated the prior conviction to determine if it was, in fact, a felony, but had relied on a statement by the prosecutor on the day the cases were called for trial that proceedings in the prior burglary conviction had been suspended. Despite defendant's insistence that his prior conviction was not a felony, Sax urged him not to take the stand on his own behalf in order to avoid bringing his prior conviction to the jury's attention. The prosecutor conceded that the prior conviction was not a felony and had been erroneously charged as such.
We do not think the above facts, if true, show that defendant's trial was reduced to a farce and sham because of lack of diligence of counsel. (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) Defendant knew the facts relating to his prior conviction and knew he had a right to testify in his own behalf. (People v. Robles, 2 Cal.3d 205, 214-215, 85 Cal.Rptr. 166.) He chose not to do so based on advice of counsel, advice which, it is now claimed, was misconceived. Nevertheless the choice not to testify was defendant's. A certain amount of miscalculation is inevitable in every lawsuit, and it would provide an enormous expansion of the concept of reversible error were we to conclude that every miscalculation of counsel and every instance of erroneous legal advice entitled a defendant to a new trial. We find the connection between counsel's dereliction and the outcome of the case too tenuous to warrant the conclusion that a miscarriage of justice occurred. (Cal.Const. art. VI, § 13.)
The judgment is affirmed on Counts II, IV, and V, and reversed on Counts I and III.
ROTH, P. J., and HERNDON, J., concur.
Hearing granted; WRIGHT, C. J., did not participate.