People v. Duens

Opinion

JEFFERSON (Bernard), J.

By information, defendant was charged with the offense of assault with intent to commit rape, in violation of Penal Code section 220. Defendant entered a plea of not guilty.

Thereafter, defendant waived his right to a jury trial and consented to a court trial with a partial submission of the case on the preliminary hearing transcript. The parties stipulated that the testimony contained in the preliminary transcript and exhibits received at the preliminary hearing could be entered into evidence at the court trial. Defendant also waived his right to confront and cross-examine witnesses who had

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testified at the preliminary hearing. These witnesses were Lorraine Croft, Claudia Caspary and Thomas Hembree. Both defendant and the prosecution reserved the right to present additional evidence at the trial.

An interpreter was present at the trial, as defendant spoke Spanish. The prosecution presented the testimony of one witness, Floyd Walizer, a former police officer. Defendant testified in his own defense. The prosecution also presented a rebuttal witness, Claudia Caspary.

Defendant was found guilty of attempted assault with intent to commit rape, purportedly in violation of Penal Code sections 664 and 220. Probation was denied and defendant was sentenced to state prison for the term prescribed by law. Defendant has appealed from the judgment of conviction, which we reverse.

The events which gave rise to this criminal prosecution occurred on the evening of May 13, 1975, at an apartment house in Panorama City. The victim, a young woman named Lorraine Croft, was proceeding down a dark corridor of the apartment house toward her apartment when she encountered defendant, whom she did not know. According to Miss Croft, defendant said something like “[c]ome here” in what sounded to her like English; she said “[n]o” and tried to move away from him. Defendant grabbed her and attempted to kiss her. A struggle ensued; the victim’s halter-type dress was tom. She screamed for help.

Miss Croft’s friend, Miss Caspary, had been waiting for her in the parking lot. She heard the screams, and came running down the corridor; she rammed defendant with her shoulder, knocking him down. Defendant got to his feet, went past the women into the parking lot, and hid under a parked car.