People v. Holbrook

Opinion

ROTH, P. J. Appellant Holbrook appeals from a judgment entered following a jury verdict in which he was found guilty of sodomy. (Pen. Code, § 286.)

The victim Terre-(Terre) met appellant in the evening hours of November 3, 1972, at a restaurant in Hollywood where she was to meet a friend of appellant’s with whom she had a date. Appellant was invited to the party and since Terre did not know the address in Bel-Air where the party was, Terre drove her car and followed behind appellant and his friend who were in the friend’s car. At approximately 1 a.m. Terre decided to leave and appellant asked her if she would drop him off at his car which was parked near the restaurant. Enroute they stopped for breakfast at Dino’s. Appellant then told Terre that his car was parked near the restaurant where he had met her. She drove into the parking lot designated by appellant and, seeing that it was deserted, she attempted to reverse the car; appellant leaned over, extracted the keys from the ignition; started unbuttoning her blouse; pulled her skirt up, struck her and placed her legs so that they pointed towards the ceiling of the car, and entered her anally. After entering her three times he quit and stated that he could not climax because of a paratroop accident that had occurred when he was 16. He then drove her car around the block and asked to see her again, and when she did not answer he stated, “If you think you are going to get me for this, you won’t. They didn’t get me before and they won’t now.” Appellant then walked away. She immediately drove away from that point and drove to the first well-lit service station where she reported that she had just been raped. The attendant called the police; when they arrived Terre was crying and appeared to have bruises on her jaw.

The only issue raised on this appeal concerns the admission about a prior incident involving appellant in 1965 into evidence. Appellant ad[639]mitted being with Terre and having sexual intercourse with her but denied sodomy. He stated that when they had arrived at the parking lot Terre had left the motor running since it was cold and after some kissing back and forth, “the natural course of events took place. . .” He denied hitting her, but stated that after the act of intercourse she became aggravated because he told her he could not see her anymore since he was living with another lady.

On cross-examination the prosecutor asked appellant if in 1963 in an incident involving Sylvia C. he had not used the same words—that he had done it before. When appellant denied this statement the prosecutor asked if he had not claimed in 1963 as he was in the case at bench that the girl had consented. If was then established that appellant had had a preliminary hearing in the case involving Sylvia C.1 He denied telling Terre that he had done it before and that he would get away with it, and denied telling Sylvia that he had done it before and would get away with it.