People v. Berry

WOOD, J. Defendant was accused of the crimes of kidnaping and forcible rape, committed while he was armed with a revolver. Trial by jury was waived. He was convicted on both counts, and the court found that the allegation in each count that he was armed with a revolver was true. The sentences were ordered to run concurrently. Defendant appeals from the judgments upon the ground of insufficiency of the evidence. His argument is that the evidence on behalf of the People is inherently improbable. Upon stipulation, a part of the People’s case was submitted on the transcript of the preliminary examination.

Esther Gutierrez, the prosecutrix, testified that on August 11, 1946, about 11:50 p. m., she and her husband, on their way home after having attended a theater, alighted from a streetcar at a place near their home, and while they were waiting on the sidewalk an automobile, in which there were two men, went a little in front of them and stopped near the curb; that defendant, who was driving the automobile, got out of it, went around in front of the automobile and pointed a gun toward her and her husband and told them to stop; that they stopped and then defendant, pointing the gun at them, told her husband to start walking, and she asked defendant'to let them go, and he told her to shut up and get in the car; that meanwhile the other man in the car, Leroy Casmas, moved to the driver’s seat; that her husband started waiting, and she got in the car and asked Casmas to tell defendant to let them go and he told her to keep quiet; that defendant, after standing by the car door about a minute watching her husband and telling him to keep walking, got in the car, and Casmas drove away; that the car was a small 1931 coupe, and she sat between the men; that while they were riding in the car defendant held the gun on her, and kept telling her to tell her husband to keep away from Connie Moro, a girl with whom defendant said he (defendant) used to live; that she (prosecutrix) asked defendant to let her go because she had a small baby; that they drove to a ranch near Wilmington and Rosecrans Avenues and stopped the ear; that defendant, continuing to hold the gun on her, told [236]her to be quiet if she wanted to get back to her baby, and told her to kiss him, and she kissed him; that defendant then got in front of her, kneeled down and unbuttoned his pants; that she told him she was menstruating; that he told her to keep quiet or he would kill her, and then he had sexual intercourse with her; that Casmas then had sexual intercourse with her; that defendant, stating that he would take her home, backed the car out of the ranch and drove to Central Avenue, and while driving, he said he knew the police and her husband would be waiting for him and that if she should tell the police anything he would kill her and her husband; that he drove on to Compton Avenue and then she saw bright lights (from another car) back of the ear, and Casmas told him to get on some other road and he turned on 116th Place and the bright lights followed close to defendant’s car; that persons in the car which was following them “hollered to stop,” and defendant stopped, and two police officers came to the side of defendant’s car, and she ran to the officers’ car; that when the officers came up defendant threw the gun. “to the back of the car” at a “sort of shelf over the back seat”; that she told her “story to the police then”; that she had never seen defendant prior to the time he stopped her and her husband that night; that she had been a friend of Connie Moro since they were in school together; that she was not bruised or scratched, nor was her clothing torn, in the altercation with defendant; and that she was scared.