People v. Jarrett

California Court of Appeal Apr 17, 1970 No. Crim. 3741Published

Before: Ault

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Holding. The court held that attempted forcible rape and attempted incest are not necessarily included offenses, allowing convictions for both arising from a single act, provided the trial court avoids double punishment by staying execution of one sentence.

Issues

Whether the defendant's claim of being 'framed' can be considered on appeal when not raised at trial.
Whether attempted forcible rape and attempted incest are necessarily included offenses when arising from a single act.
Whether the trial court's method of staying execution of one sentence sufficiently avoids the prohibition against double punishment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under well established appellate rules, this court need not consider issues not raised at trial and may not properly consider alleged facts which are wholly outside the record on appeal.”

“The crimes of forcible rape and incest each contain elements not necessarily included within the other.”

“We, therefore, conclude attempted forcible rape and attempted incest are not necessarily included offenses and that appellant’s conviction of each is proper”

Opinion

AULT, J.

Appellant, Carroll Gene Jarrett, was convicted by jury of attempted forcible rape and attempted incest. Both convictions arose out of a single event involving appellant and his 14-year-old half sister. After hearing, the court found appellant to be a mentally disordered sex offender,

[739]

suspended criminal proceedings, and ordered him sent to Atascadero State Hospital for diagnostic study and report. Upon his return, criminal proceedings were reinstituted, application for probation was denied, and he was sentenced to prison on both the attempted forcible rape and the attempted incest convictions. The court stayed execution of the sentence imposed on the attempted incest conviction pending appeal, and service of the sentence imposed for attempted forcible rape, the stay to become permanent upon completion of that sentence. The appeal is from the judgment óf conviction.

The testimony of the victim, together with that of a police officer, whose timely arrival on the scene accounts for the fact attempt charges only were filed, amply supports the finding of guilt. Appellant’s sole contention on appeal is, “I was framed.” In his brief he claims he was lured into the compromising position in which he was found. He states the victim’s parents held a grudge against him, blamed him because an older child had run away from their home, and had threatened to get even. He brings the police into the plot by asserting the arresting officer called him and his half sister by first names at the time of the arrest and obviously knew just where and when to find the two of them.

There is nothing in the record before us which would in any way support appellant’s presently asserted claim, “I was framed.” That theory was not advanced at the trial and no reason is given why it was not. Under well established appellate rules, this court need not consider issues not raised at trial and may not properly consider alleged facts which are wholly outside the record on appeal.

(People

Brawley,

1 Cal.3d 277, 294-295 [82 Cal.Rptr. 161, 461 P.2d 361].)

People v. Jarrett

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AULT, J.

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