People v. Rucker

GRIFFIN, P. J. Defendant appeals from a judgment of conviction of a violation of Penal Code, section 288a, after a jury trial.

Defendant’s contention that the evidence is insufficient to sustain the judgment is without merit. The offense of which he was convicted occurred in a public restroom having several stalls. By looking through the opening beneath the bottom of a stall door, an elevator man working in the building observed the feet of two men in one of the stalls. He summoned three other men employed in the building, one of whom looked over the top of the stall partition and observed defendant committing the offense with another man named Smith. The police were called and defendant and Smith were restrained from leaving the stall until the police arrived. While defendant and Smith were being held within the stall pending arrival of the police, the sounds of a struggle were heard from within the stall. A few minutes later the police arrived, removed defendant and Smith from the stall and placed them under arrest. Defendant had a small fresh cut over his right eye.

At the time of his arrest, defendant did not state that he had been forced to commit an act of sex perversion by Smith. Both defendant and Smith were searched when placed under arrest and no knife or other weapon was found upon the person of either man or in the vicinity of the stall. During subsequent interrogations by the police, defendant did not mention that Smith had threatened or assaulted him. When questioned by the arresting officer as to how he had received his injury, defendant said he could not recall.

The following day, while being interrogated by police officers, the defendant said he had been injured in a fall while walking on the street. During this same interrogation, the defendant said that during the preceding evening he had met Smith while drinking in a bar • that they left about the same time and defendant walked along the street in quest of a taxi. Then defendant went into the public restroom in question and entered a stall therein. Smith entered the same stall and before defendant could conveniently ask him to leave they were arrested.

At the trial, defendant testified to a different version of these events. He did not deny the commission of the act charged but testified that Smith forced him to commit the act by threatening him with a knife. Defendant testified that he [345]was afraid that if he did not commit the act of sex perversion Smith would kill him.