People v. Gay

DRAPER, P. J.

A jury found defendant guilty of burglary (Pen. Code, § 459), assault with a deadly weapon (Pen. Code, § 245), and three sex offenses (Pen. Code, §§ 288a, 286, and 261, subd. 4). He was sentenced to concurrent terms on all five counts, and appeals from the judgment.

The prosecutrix testified that she was awakened at 2 a.m. Sunday by the ringing of her doorbell; a voice said ‘‘ Telegram, Western Union”; she turned on the light and opened the door slightly; defendant pushed through the door, and forced his left arm around her throat. He carried a carving knife in his right hand, and stopped her scream by threaten

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ing to “slit your throat.” He asked if she were alone, and was told that her children were in bed in the house. Maintaining his armhold on her throat and continually threatening her with the knife, he forced her to a bedroom, and there committed the three sex offenses. There was evidence that defendant had spent the day at a house adjoining that of prosecutrix from which her home could be seen, and had been drinking. The prosecution produced a witness who testified to an assault attempt by defendant slightly less than four years earlier.

Defendant asserts that admission of evidence of this prior offense was error. But evidence of other crimes is admissible if it shows a common plan, scheme or modus oper- and!, and thus tends to establish identity of the offender in the case on trial

(People

v.

Peete,

28 Cal.2d 306, at pp. 315, 319 [169 P.2d 924];

People

v.

Houston,

219 Cal.App.2d 187 [33 Cal.Rptr. 26];

People

v.

Renchie,

217 Cal.App.2d 560 [31 Cal.Rptr. 694];