People v. Mendoza (55 Cal. App. 2d 625, 1942)

WHITE, J.

In an amended indictment returned by the Grand Jury of Los Angeles County, defendant was accused in count one of the crime of attempted rape, while in a second count he was charged with the offense of kidnaping. When arraigned for plea, the defendant entered pleas of not guilty to each count in the amended indictment and also pleaded that he had theretofore been convicted of the offenses charged against him and that he had been once in jeopardy for said offenses.

Trial was had before the court sitting without a jury, resulting in the conviction of defendant of the offense of attempted rape as charged in count one and his acquittal of the crime charged in count two. From the judgment of conviction and the order denying his motion for a new trial, defendant prosecutes this appeal. But one question is here involved, and that concerns the plea of double jeopardy in connection with the offense of attempted rape charged in count one.

Epitomizing the factual background surrounding this prosecution, the record discloses that about five o’clock on the morning of January 18, 1942, in the city of Los Angeles, the prosecutrix was walking down First Street on her way to work, intending to board a street car at First and Spring Streets. She had arrived at the corner of First and Olive Streets, which is three blocks west of Spring Street, when she first observed the defendant. The latter walked up to and in front of her and commenced to talk to her, saying, “I will give you twenty dollars. I am crazy. I haven’t had a woman in so long, I have to have one. I will give you twenty dollars.” The defendant continued to repeat, over and over again, “I will give you twenty dollars if you will come with me to my room.” Thereupon the defendant grabbed the prosecutrix and tried to take hold of her, but she got away from him and walked very fast, telling him to go away and mind his own business. Suddenly the defendant again took hold of the prosecutrix around her waist and commenced pulling at her coat, repeating in substance his aforementioned language. At this time the prosecutrix, still attempting to get away from the defendant, was walking down the incline from Olive Street toward Hill Street. Again she broke away from the defendant and continued to walk on "at a very fast gait. Looking back, she observed that the defendant was but a few feet away and following her. When she was about half way between Olive and Hill Streets defendant struck her in the mouth, grabbed her by the foot, and she fell to the sidewalk, and commenced to scream. She was then dragged by the defendant to an adjoining parking lot between several parked cars. After defendant had dragged the prosecutrix to the point last mentioned, he said again, “I have got to have a woman. I am going to have you. I will pay you. Do I have to kill you?” The defendant placed his arm around the neck of the prosecutrix and started to choke her. From the evidence, it appears that the prosecutrix had fallen and was lying partly on the defendant. The prosecutrix continued to struggle with the defendant, and finally was able again to scream. Police officers, hearing the cries of the prosecutrix, rushed to the scene of the assault, but as they approached the defendant ran away. He was overtaken about a block away.

The prosecutrix suffered several lacerations upon her body, and she testified that two or three times the defendant attempted to raise her coat and tried twice to put his hands under her dress, but because of her struggles he was unable to raise her garment more than a few inches. The defendant testified that he came to the city from an adjoining county the evening before the alleged assault; that he drank considerable intoxicating liquor throughout the night. He admitted seeing the prosecutrix, and explained his approach to her by saying that he mistook her for a prostitute and for that reason sought to have sexual intercourse with her. The defendant testified that he did not remember putting his arms around the neck of the prosecutrix or dragging her into the parking lot, but did remember that she started to scream and that they both stumbled and fell to the ground. He admitted attempting to put his arms around the waist of the prosecutrix, but claimed that his impaired recollection of what occurred was due to the fact that he was under the influence of liquor.

In support of his pleas of prior conviction and once in jeopardy, defendant introduced into evidence certain records of the Municipal Court of the City of Los Angeles. These records showed that following the assault upon her by the defendant, the prosecutrix, prior to the return of the amended indictment herein, signed and swore to a complaint in the aforesaid municipal court wherein she charged the defendant with the crime of battery, in that he allegedly did willfully and unlawfully use force and violence upon her person, in violation of the provisions of section 242 of the Penal Code. The municipal court record further discloses that on January 20, 1942, the defendant entered a plea of guilty to the charge of battery, and that on January 22 he was sentenced to serve ninety days in the county jail, half of which sentence was suspended and the defendant placed on probation for the term of one year under certain specified terms and conditions. At the trial in the superior court upon the amended indictment it was stipulated between the district attorney and the defendant’s counsel that the charge of attempted rape as set forth in count one of the amended indictment arose out of the same transaction and was predicated upon the same state of facts which gave rise to and formed the gravamen of the particular charge lodged against defendant in the municipal court proceeding.

As heretofore indicated, the sole contention of appellant on this appeal is that his joint pleas of former conviction and once in jeopardy should have been sustained by the trial court. This contention is predicated upon the claim that the crime of battery (Pen. Code, § 242), is an offense necessarily included in the offense of attempted rape. Section 1023 of the Penal Code, upon which appellant relies, provides that when a defendant is convicted or acquitted, or has been once placed in jeopardy, upon an indictment or information, the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former or for an attempt to commit the same, or “for an offense necessarily included therein” of which he might have been convicted under that indictment or information. It follows, therefore, that the question to be determined in this proceeding is whether the crime of battery is an offense necessarily included in the charge of attempted rape.

The particular provisions of section 242 of the Penal Code to a violation of which appellant pleaded guilty in the municipal court are as follows: “A battery is any willful cmd unlawful use of force or violence upon the person of another. ’ ’ (Italics ours.)

Battery includes and implies an assault, and there can be no battery without an assault. (People v. McDaniels, 137 Cal. 192, 194 [69 P. 1006, 92 Am.St.Rep. 81, 59 L.R.A. 578].) While it is true, as urged by respondent, that there is a distinction between the crime of attempt to commit rape with which the defendant was charged and the offense of an assault with intent to commit rape, for which section 220 of the Penal Code makes provision, and that the first mentioned crime does not necessarily include an “assault” (People v. Akens, 25 Cal.App. 373, 375 [143 P. 795]), nevertheless, an analysis of the allegations contained in count one of the amended indictment herein clearly and unequivocally shows that the assault which formed the basis of the battery charge in the municipal court was the gravamen of the charge of attempted rape and was specifically pleaded in the amended indictment as well as relied upon at the trial to prove the offense there charged against appellant. The charging part of the amended indictment reads that the defendant did, “with force and violence attempt to have and accomplish an act of sexual intercourse,” while at the trial the entire evidence offered to prove the attempted rape was the assault made upon the prosecutrix by appellant. Manifestly, the “force and violence” charged, or in other words, the assault upon the prosecutrix by defendant, was a necessary and integral requirement to prove the corpus delicti of the offense framed by the pleading and established by the evidence in the subsequent felony trial. The facts in the instant case reveal that the prosecutrix suffered no more bodily harm when count one of the amended indictment was filed in the superior court than she did at the time when she initiated the battery proceeding in the municipal court. There were no new, after-occurring facts from the date of the battery. In other words, at the time ■ the felony charge was lodged, there was no residue of the offense charged in the battery complaint. The application of force' and violence was the same in the first as in the later prosecution. No event occurred after the prosecution for the lesser offense making complete a greater offense. The greater offense was complete at the time of the prosecution for the lesser offense.

Bearing in mind what we have just said, the cases of People v. Lee Kong, 95 Cal. 666 [30 P. 800, 29 Am.St.Rep. 165, 17 L.R.A. 626], People v. Coltrin, 5 Cal.2d 649 [55 P.2d 1161], and others cited by respondent, are clearly distinguishable from the ease at bar. The last-mentioned cases give expression to the legal principle that a prosecution for an abortion is not a bar to a subsequent prosecution for murder based upon the same facts. The reasoning contained in these cases is not at variance with the conclusion we have reached in the instant case, for in the cited cases there was a residue of new, after-occurring facts from the date of the abortion, namely, the death of the victim; whereas in the instant case there is no such residue. The same line of reasoning might be applied to a ease wherein an assault is committed by one person upon another, subsequent to which the person making the assault is charged with and punished for the offense .of battery or assault, and within a year after the infliction of the injury the victim dies as a result thereof. Because of the intervening or after-occurring facts, viz., the death of the victim, a manslaughter charge could legally and lawfully be preferred. This for the reason that battery provides for a misdemeanor punishment for a violation of section 242 of the Penal Code. It makes no attempt to punish for the consequences, if any, which may flow from the act of battery, such as the death of a victim. But if no consequences flow from the act of battery, then the battery itself has been fully punished under a prosecution for a violation of section 242 of the Penal Code, and no residue is left to punish under any other applicable section attempted later to be applied. If, for instance, the greater crime is first charged, and in order to prove the same it is necessary and essential to completely prove the corpus delicti of a lesser crime, such lesser