People v. Sunseri

SHINN, J. In a trial by the court, defendant was convicted of assault with intent to commit rape and was sentenced to state prison. He appeals from the judgment, and urges as the sole ground for reversal that the judgment is contrary to the law and the evidence.

[396]The prosecutrix is a widow over 35 years of age and at the time of her encounter with defendant was employed at an aircraft plant in Inglewood, working from 5 p. m. until 3:30 a. m. She lived in the northern part of Los Angeles and traveled to and from work by streetcar. In the early morning hours of May 3, 1945, she alighted from a streetcar at a point seven or eight blocks from her home and had walked about a half block when she discovered defendant walking behind her. She crossed the street and recrossed it, walking rapidly, and defendant followed her, and after they had walked some distance he inquired of her, “Don’t you want to be sociable?” She told him to go ahead and mind his own business and leave her alone. Defendant said, “All right, if that’s the way you feel about it,” and walked ahead of her slowly until they came to three vacant lots where a house was set far back from the street. Here defendant turned around and said, “Don’t you want to be sociable?” and prosecutrix said, “I told you to go along and mind your own business. Leave me alone or you will get in trouble.” The prosecutrix did not know defendant and had never seen him before. Up to this point there was no conflict in the account given by prosecutrix and that given by defendant. The former testified that when she last told defendant to leave her alone he hit her over the face and head with his fists, told her that if she screamed he would knock her down, and to keep quiet or he would kill her, choke her; that her upper lip was cut on„the inside and front, her nose was caused to bleed, the side of her face was swollen, and that she was later treated at a hospital ; that he pushed her down, pulled down the zipper on her slacks, pulled her slacks and panties down but not all the way off, and that he then made an effort to accomplish an act of intercourse with her. She testified that she called for help.

Defendant testified that he grabbed prosecutrix and threw her to the ground; that he removed her slacks part way, and opened his own trousers. He testified that she did not resist him or call for help. At this stage of the affair a policeman approached and fired two shots and, according to defendant, prosecutrix then called for help. Defendant admitted on the stand having struck prosecutrix in the face once and having attempted an act of intercourse, and he testified that he threw her to the ground with that purpose in mind. He struck her, he said, because she would not cooperate. He also testified