People v. Butterfield (258 Cal. App. 2d 586, 1968)

GARGANO, J.

Defendant a 19-year-old boy, was convicted of oral copulation in violation of Penal Code section 288a. The jury, by a special verdict, also found that the crime was accomplished by means of force and violence, thereby invoking the mandatory three-year prison sentence prescribed by section 288a. The court denied defendant’s application for probation and committed him to the California Youth Authority for the term prescribed by law. Defendant appeals from the judgment of conviction.

About 10:30 p.m. on the evening of June 14, 1966, prosecutrix left her home with a date who took her to a beach at Bran-nan Island State Park arriving around 11:30 p.m. Shortly thereafter several carloads of boys also arrived at the park. The boys commenced to drink. The prosecutrix then tried to get her date to take her home, but he refused. Later the prosecutrix returned to her date’s car where several of the young men accosted her and made improper advances. When she tried to run away the boys threw her to the beach and ripped her clothes off. Then between five and ten of the boys began to sexually assault her; some took turns raping her and some forced their penes into her mouth.

During this outrageous sexual onslaught prosecutrix’ protests were ignored and she was warned to cooperate; otherwise, she would be thrown in the river. The victim returned to her home at about 4:45 a.m. of the following morning. Her mother was awake at that hour and heard her daughter moaning and screaming as she ran across the street toward the house. She was hysterical when she entered her home, her brassiere was gone, her pants torn and she was carrying one remaining shoe. Sand was in her hair, eyes and mouth. There was a bruise visible over one eye and a scratch on her neck. A subsequent medical examination at the hospital disclosed bruises on the victim’s left breast, left portion of her abdomen and above one eye. Sand and mud were also found along the entire length of her vaginal tract.

Afterwards the victim along with her mother and stepfather returned to the scene where they met an officer from the Sacramento sheriff’s office. There they recovered numerous items of the victim’s clothing from the previous night.

At the trial the victim could not identify defendant as one of the boys who had so brutally assaulted her. However, a witness, Danny Williams, testified that he saw appellant force his penis into the victim’s mouth. He stated that he attempted to intervene but decided against further interference because of fear of what would happen to him if he persisted. Williams testified that after he left the area-he heard the victim scream. Defendant took the stand and admitted that he knowingly and wilfully placed his penis in the victim’s mouth. His defense was based entirely on the theory that the victim was actually a willing participant.

Defendant contends that the trial court committed prejudicial error when it admitted into evidence the statements which he made to Inspector Stanley E. Kirkman of the Sacramento County sheriff’s office at defendant’s home approximately 10 days after the crime was committed. Inspector Kirkman and his companion, Sergeant Davis, were invited into the house by defendant’s mother after they had identified themselves as police officers. Kirkman advised Mrs. Butterfield that he wanted to talk to defendant alone and suggested that the interview take place in the kitchen where he could use the kitchen table to take notes. Mrs. Butterfield sought to participate in the interview but then acquiesced when Kirkman told her that he did not have to talk to defendant in her presence since defendant was over 18 years of age. Defendant’s mother retired to the living room where she remained throughout the interview which lasted approximately 15 minutes. The door between the kitchen and the living room remained open.

After Mrs. Butterfield left the room Kirkman informed defendant that he was a suspect in a rape and perversion case. He also purported to advise defendant of his constitutional rights as follows: 1 ‘ I want to advise you of your rights, your constitutional rights, your rights to remain silent; your right that you do not have to answer any questions that I put before you; your right to an attorney, either retained by yourself or furnished by Sacramento County. I want to advise you that anything that you say may be used against you or for you.” Defendant stated that he understood his rights and that he was willing to discuss the matter with the officers. After first denying any involvement, defendant admitted that he had the prosecutrix orally copulate him but insisted that it was voluntary.

It is clear that when the officers talked to defendant at his home the investigation was no longer a general inquiry into an unsolved crime but had focused on defendant as a suspect. It is also clear that Inspector Kirkman did not advise defendant of his constitutional rights according to the precise requirements specified by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], The officers called at defendant’s home only a few days after the Miranda decision; consequently, no one told defendant that he was entitled to the presence