People v. Arechiga

McCOMB, J.

From verdicts of guilty of (1) kidnapping and (2) rape, after trial before a jury, defendant appeals. There is also an appeal from an order denying his motion for a new trial.

The evidence being viewed in the light most favorable to the People (respondent), and pursuant to the rules set forth in

People

v.

Pianezzi,

42 Cal.App.2d 265, 269 [108 P.2d 732], the essential facts are:

At about 8:30 p. m., on March 18, 1944, Mary Fernandez, age 17, while on Ord Street, between Broadway and Castelar Streets in Los Angeles, California, was struck by defendant, pushed into his car, threatened that if she made any outcry he would strike her again, driven to the hills and there thrown to the ground. Defendant then had an act of sexual intercourse with her against her will.

Defendant relies for reversal of the judgment on three propositions which will be stated and answered hereunder seriatim:

First:

There is not any substantial evidence to sustain the judgments of guilty.

This proposition is untenable.

(a) Section 207 of the Penal Code so far as applicable here reads as follows:

“Every person who forcibly steals, takes, or arrests any person in this state, and carries him . . . into another part of the same county ... is guilty of kidnaping.”

Clearly the testimony of the complaining witness shows that defendant was guilty of kidnapping in violation of the provisions of the foregoing section when he forced Miss Fernandez to get into his automobile and took her to another part of Los Angeles County.

(b) So far as applicable here, section 261 of the Penal Code reads thus:

“Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: . . .

“(3) Where she resists, but her resistance is overcome by force or violence;

‘‘ (4) Where she is prevented from resisting by threats

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