People v. Benavidez

FOURT, J.

This is an appeal from a judgment of conviction of forcible rape in violation of section 261, subdivision 3, of the Penal Code.

In an information filed in Los Angeles on June 29, 1966, defendant was charged with raping Caroline Maiden on May 21,1966, by force and violence. Defendant pleaded not guilty. A jury trial was waived and it was stipulated that the cause be submitted on the testimony in the transcript of the proceedings had at the preliminary hearing, with each side reserving the right to offer added evidence. Defendant testified and called one other witness, a taxicab driver. At the time of taking oral testimony, all witnesses were excluded from the courtroom until called to testify. Defendant was found guilty as charged and sentenced to the state prison, the term to run consecutively to any other sentence being served.

A résumé of some of the facts is as follows: At or about 1:45 a.m. on May 21, 1966, Caroline Maiden started walking from her house to a neighborhood liquor store, which was three or four houses beyond hers, with the intention of purchasing some milk and a can of beer. She stopped at the corner for a street traffic signal and defendant drove up in his ear, opened the door and called out to her. Defendant mentioned something about an address and Mrs. Maiden stepped toward the ear in order to understand better what defendant was talking about. Defendant asked Mrs. Maiden if she wanted a ride and she responded in the negative. Defendant grabbed her arm, twisted it and pulled her part way into the car; he drove away with the door open and with Mrs. Maiden’s feet hanging out. Later she was seated in the car and defendant told her he had a knife and a gun and that if she did not do as he directed, he might have to use them. She attempted to convince defendant to take her to the store where she originally had intended to go or to her home where she was living with her six children and a grandmother. She attempted to jump out of the car on two or three occasions. Later defendant drove to a darkened area where there were no houses close by. Defendant then told Mrs. Maiden that they were going to engage in sexual intercourse and directed her to disrobe. She stated that she did not desire to take her clothes off. Defendant started to rip or forcibly take off her dress. He

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