People v. Winters

Defendant-appellant was charged with and convicted by a jury of the offense of rape, a violation of section 261, subdivision 4 of the Penal Code, and robbery, second degree, violation of section 211 of the Penal Code, on October 19, 1957.

The prosecutrix, aged 22, about 5 feet 6 inches tall, weighing about 140 pounds, was living with her husband in Lemoore. On October 19, 1957, she left in her ear with her four children, ranging in age from 2 to 5 years, to visit her mother near Riverdale. On her return home that evening about 8 :45, her car ran out of gasoline. After waiting alongside the road for some time appellant and his 12-year-old brother-in-law drove up and offered to push her car to a service station. After some effort he said he could not negotiate it and he invited the prosecutrix and her children to ride with him to the station. They got in the back seat of his car. Appellant drove off the highway and up a more or less isolated dirt road, stopped, got out, opened the door to the back seat and invited the prosecutrix to see a rear tire which he said was flat. He then put his hands on her shoulders and told her to put the baby down from her arms or in the front seat. She testified she became “scared” and said “No” over and over, and refused; that he said the boy in the front seat had a gun and she turned and saw the boy standing on the other side of the car facing toward the children in the back seat; that she could not see his hands to determine whether he had a gun; that because of what appellant said she opened the front door and placed the baby down on the front seat; that appellant steered her around in front of the car with his arm around her and she did not resist; that appellant then started talking about “gangs . . . Duke’s Gang of Los Angeles,” and said he was a member of it; that there were “guys all around there” and he told her to be quiet and not cry so

The law-enforcement officers were called and on October 24th appellant was apprehended and questioned. He stated that on October 19 he was home all afternoon and evening and had not taken his car out. Later, he stated he was home until dark and had been drinking wine; that he then left in his car with the boy, Christopher; that the gun was already in the car; that “Chris” had it for a while and later put it over the back seat; that he was going to kill pigeons; that en route he saw the prosecutrix stalled in her car and out of gasoline; that he put her and the children in his car and stopped near a bridge and told her he had a flat tire; that he did not have sexual intercourse with her because she refused ; that no threats were made to her about “gangs” and he never mentioned anything about a gun; that they drove to a gasoline station, bought some gasoline for each ear and she gave him $2.00 for this purpose; that they drove back to her car, placed the gasoline in it; that she gave him $5.00 and left for home; and that he did not have sexual intercourse with her at all.

On another occasion, with a shorthand reporter present, he changed his story and said he did have sexual intercourse with her twice there and once later, as described by the prosecutrix, but claimed she consented to these acts; that he told her he probably would not have money enough to get home so she handed him her wallet and told him to take the $7.00

On this appeal appellant claims: (1) that the testimony of the prosecutrix was inherently improbable and advances his reasons why the evidence falls short of that required to show that since the prosecutrix did not resist, she must have been prevented by threats of great and immediate bodily harm, accompanied by apparent power of execution, citing Penal Code, section 261, subdivision 4; and People v. Peterman, 103 Cal.App.2d 322 [ 229 P.2d 444 ].

A threat may be expressed by acts or conduct as well as by words. (People v. Harris, 108 Cal.App.2d 84 , 89 [ 238 P.2d 158 ].) Submission through fear is not consent. (People v. Cassandras, 83 Cal.App.2d 272 , 279 [ 188 P.2d 546 ].) A mere recitation of the testimony of the prosecutrix meets the requirements prescribed by Penal Code, section 261, subdivision 4. While the testimony of the prosecutrix, when considered in connection with appellant’s story, may well have been argued to the jury in support of his contention that there was not sufficient reasonable resistance offered by the prosecutrix, the jury’s conclusion on this subject is final and is supported by the evidence. It cannot be said that her testimony was inherently improbable. (People v. Simpson, 43 Cal.2d 553 , 563 [ 275 P.2d 31 ]; People v. Showers, 90 Cal.App.2d 248 , 253 [ 202 P.2d 814 ]; People v. Ogden, 41 Cal.App.2d 447 , 455 [ 107 P.2d 50 ]; People v. Harris, supra.)

Appellant next argues that the prosecutrix merely handed her money to him without force or fear on his part, and accordingly the robbery charge cannot be supported. It is not necessary that the robbery be accomplished by means of both force and fear. (People v. Borra, 123 Cal.App. 482 , 484 [ 11 P.2d 403 ]; People v. Calliham, 81 Cal.App.2d 928 [ 185 P.2d 342 ]; Pen. Code, § 211.) There was sufficient evidence that the appellant accomplished the acts of sexual intercourse and took the money from the prosecutrix by means of fear. (People v. Enochs, 113 Cal.App.2d 231 , 233 [ 247 P.2d 929 ].)

The argument that appellant could not be convicted of second degree robbery where the threat by the gun was the inducing cause, because it would be robbery of the first degree, is untenable. The threats made were not only by the use of a gun but there were other threats which could well have placed her in fear to the extent that she parted with her money. At any rate, appellant could not complain that he was prejudiced