People v. Thomas

Opinion

KINGSLEY, Acting P. J.

Defendant was charged with (count I) rape with force and violence, in violation of subdivision 1 of section 261 of the Penal Code; (count II) rape on an unconscious victim, in violation of subdivision 4 of section 261; (count III) burglary, in violation of section 459 of the Penal Code; (count IV) robbery, in violation of section 211 of the Penal Code, and (count V) mayhem, in violation of section 203 of the Penal Code. Infliction of great bodily injury was alleged in connection with counts I, II, III and IV. After a trial by jury, he was found not guilty on counts I and IV but guilty on counts II, III and V; the allegations of great bodily injury were found true. Defendant was sentenced to state prison, the sentence on counts III and V being stayed under the

Niles

formula.

1

He has appealed; we affirm.

On this appeal, defendant contends: (1) that the evidence was insufficient to sustain the verdicts; (2) that he was denied the effective

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assistance of counsel; (3) that the trial court erred in not striking the conviction on count V (the mayhem count); and (4) that the findings of great bodily injury were not supported by the evidence. We reject all four contentions.

I

The evidence against defendant was admittedly weak, being based on circumstantial evidence. The People’s evidence showed that defendant had been seen at about 9:30 p.m., shortly before the attack on the victim, walking in the vicinity of the crime; that the victim had been attacked at about 10 p.m. by someone who had entered her home; that the victim, because of darkness could not see or identify her attacker; that she fainted and awoke finding that she had been raped, badly bruised and with a broken ankle. Evidence of a vaginal examination of the victim showed sperm with a blood type of defendant, but that blood type is common. A sweater, found in defendant’s car, had on it a leaf common to plants both in the victim’s yard and in that of defendant. No fingerprints were found.

The attack on the sufficiency of the evidence relies on the weakness of the evidence: that the opportunity of the witness who claimed to have seen the defendant in the vicinity was unreliable because of distance and poor light; that defendant had an unrebutted alibi for the times in question; and that the People had improperly relied on an untrue explanatory statement of defendant to show consciousness of guilt.