People v. Hillard

Opinion

GOERTZEN, J.

Judge Hillard, Jr., appeals the judgment following his conviction after a jury trial of assault with the intent to commit rape (Pen. Code, § 220) and trespass (Pen. Code, § 602, subd. (/)).

He contends that “[t]he law does not recognize the crime for which [he] was convicted, assault with intent to commit spousal rape, and he should therefore be acquitted.”

The trial evidence established that, during the evening of December 9, 1987, appellant twice telephoned his estranged wife, from whom he had been separated for 14 months. He claimed that he wanted a reconciliation. She refused. Then he arrived at her Inglewood apartment uninvited several hours later. She did not answer the door, so he went to the back of the apartment and spoke to her through the rear windows. She again did not reply.

Finally, appellant broke a bedroom window with an ax handle and entered the apartment. His wife attempted to flee, but appellant grabbed her. He pushed her onto her sofa. Then he pushed her into her bedroom and onto the bed. He pulled the telephone from the wall and disrobed. He put his hand over her mouth to prevent her from screaming. She resisted but he

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climbed on top of her on the bed with an erection and attempted sexual intercourse.

The police arrived. Appellant refused to answer the door. After his wife screamed, the police entered through a window. They found appellant nude in the apartment. An ax handle was lying on the living room floor. His wife, who was hysterical, was wearing a torn nightgown.

The information charged “the crime of Assault With Intent to Commit Rape, in violation of Penal Code Section 220, a Felony, was committed by [appellant], who did willfully and unlawfully assault [his wife] with the intent to commit rape in violation of Penal Code section 261 (2) and (3).”

At the close of the People’s case, appellant moved for an acquittal of the assault offense pursuant to Penal Code section 1118.1.

Appellant urged that he had not committed rape in violation of Penal Code section 261 and was thus entitled to an acquittal. Appellant also asserted that Penal Code section 220 did not specifically enumerate the offense of spousal rape and, thus, appellant could only be charged, if at all, with attempted spousal rape pursuant to Penal Code section 664/262.