People v. Peckham

California Court of Appeal Apr 3, 1967 No. Crim. 11673Published

Before: Wood

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Holding. The court held that the evidence was sufficient to support a conviction for assault with intent to commit rape, that Penal Code section 220 is not unconstitutionally vague, and that the trial court did not err in its instructions, evidentiary rulings, or sentencing.

Issues

Is the evidence sufficient to support a conviction for assault with intent to commit rape?
Is Penal Code section 220 unconstitutionally vague?
Did the trial court err in its jury instructions or evidentiary rulings regarding the defendant's prior trial?
Did the trial court err in denying probation at the second trial?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The crime of assault with intent to commit rape is established when the prosecution proves that the defendant intended to have sexual intercourse with his victim and to use force to overcome her resistance.”

“The fact that appellant may have been intoxicated at the time of the assault and that when intoxicated he was impotent, are not in and of themselves defenses to the crime of assault with intent to commit rape”

WOOD, P. J.

In a jury trial defendant was found guilty of violating section 220 of the Penal Code (assault with intent to commit rape). He appeals from the judgment. In a previous trial of the charge defendant was found guilty, and the judgment was reversed on the constitutional ground stated in

People

Dorado,

62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361],

(People

Peckham,

232 Cal.App.2d 163 [42 Cal.Rptr. 673].)

Appellant contends that the evidence is insufficient to support the verdict; that section 220 of the Penal Code is unconstitutionally vague; that the court erred in instructing the jury, in permitting references to the previous trial, and in sentencing defendant; and that the deputy district attorney was guilty of misconduct in his closing argument.

About noon on September 14, 1963, Mrs. Olf, a school teacher, went into a classroom at a public school in Los Angeles to prepare for the new school term which would commence on the following Monday. No one was on the school grounds at that time.

About 12:30 p.m. defendant parked his automobile in a parking lot near the classroom and next to Mrs. Olf’s automobile. He went to the classroom door and told Mrs. Olf that he had come to deliver a table. Mrs. Olf asked whether he would help her remove a key which was stuck in a cupboard door. Defendant removed the key, returned to his automobile, and drove away.

Defendant parked his automobile “down the street,” walked back to the school grounds, “traversed” a chain link fence, and entered the classroom. Mrs. Olf said: “What are you doing here?”. Defendant replied: “The truth is I want you.” According to Mrs. Olf’s testimony, defendant then hugged her forcefully, backed her up against the cupboard doors, and forcefully engaged in various physical acts against her will. Her testimony with reference to those acts was in substance the same as her testimony at the first trial (see

People

Peckham, supra,

pages 165-167). Her testimony at the second trial was to the effect that defendant used force to induce her to submit to attempted sexual acts, that she repeatedly asked him to “stop,” that she looked for something with which to hit him, that she was afraid to scream

People v. Peckham

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WOOD, P. J.

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