I 39;ll Die For Vengeance (1968)
Heather Mitchell
The victim of the offenses charged against Morris and Beasley was an unmarried young lady of 22 years whose given name, Lois, will be used by [5 Cal. App. 3d 622] us. Lois was employed as a cashier by a large San Francisco hotel. On the evening of November 20, 1968, she left her employment around 11 o'clock and started home by public bus. Leaving the bus at a transfer point she waited for another which would take her about a block from her home. While waiting, an automobile occupied by defendants Morris and Beasley and one Jackson (who is not a party to this appeal) drove up and stopped. They "started making noises" and calling out "Oh, baby." However, the second bus soon arrived and the girl continued on her way home; unknown to her the three men followed. A few minutes later Lois left the bus and started walking toward her home where she lived with her parents. Almost home, she again saw the car with the three men, one of whom called out "There she is. That's her." Walking fast she heard a car door open after which a man grabbed her by the throat with one hand and over the mouth with the other. She kicked and screamed, but was thrown into the back seat of the automobile. Her shoes had been knocked off her feet and her front door key out of her hand. Her mother, hearing the screams, ran to the window and saw the abduction.
Defendant Morris who "was the most aggressive and vile of the three," was the car's driver. He drove while one of the others placed his hand over Lois' throat and told her to stop screaming. She was promptly relieved of the contents of her purse and a valuable topaz ring, and told that she was "going for a long ride." The car was driven somewhere "up in the hills" where the men took off the girl's upper clothing; she was ordered to remove the remainder. She complied because she believed Morris would carry out a threat he made to kill her. The men then raped her one by one, accomplishing six acts of sexual intercourse. One of the men tried to force the girl to orally copulate his sexual organ, but was somehow discouraged from the act. The men then disagreed over what they should do next. Morris' expressed thought was "we're going to have to kill her -- we're going to have to get rid of her." Another suggested that they disfigure her face. Further violence was averted when the discussion turned to the "ransom" possibilities of the situation. Lois very intelligently entered into this conversation. She explained that she was a hotel cashier and that she took in about $600 cash during her shift. If they took her home and didn't "bash up my face or anything" she agreed that the men could come to her cashier's cage the next night and "say, 'All right, hand over your money,' and I'll give it to you and I'll wait for a few minutes until you have a chance to get out and everything, and then I'll tell one of the bartenders, because the bartenders are right next to the cashier, and I said, 'I'll just say I have been held up,' you know. And I said, 'That's all there is to it.' I said, 'Nobody will get hurt,' you know. I said, 'I won't lose my job, and the hotel is insured.'" [5 Cal. App. 3d 623]
After being warned by Morris that if anything went wrong with the next night's pretended robbery she would be killed and her "parents' home would be bombed," Lois was let out of the car about a block away from her residence. The police who had already been there were again called; Lois related the events of the evening and the "plans" for the hotel robbery to them. The next evening Morris and Beasley appeared at the hotel as agreed. Lois pointed them out to the waiting police and both were arrested.
There can be no doubt concerning the reliability of Lois' recollection of the events of the evening in question, for her statements to the police and later to the grand jury were fully corroborated by uncontested confessions of Morris and Beasley. The men were thereafter released on bail.
Morris, Beasley and Jackson were each indicted by the San Francisco County Grand Jury on three counts of rape (Pen. Code, 261, subd. 4), one count of kidnaping for robbery (Pen. Code, 209), and one count of robbery (Pen. Code, 211). Each rape count alleged that one of the defendants had directly committed the act while being aided and abetted by the others.
The remainder of the pertinent factual history of this case relates to proceedings before Superior Court Judge Bernard J. Glickfeld to whose department of the court the Morris and Beasley cases had been assigned.
Morris and Beasley pleaded not guilty to all charges. Jackson, who had a prison record, pleaded guilty to one of the charges against him and was returned to prison. On motion of the district attorney the remaining charges against him were dismissed.
It is conceded that following the arraignment of Morris and Beasley and their not guilty pleas, two successive unreported and otherwise unrecorded conferences were held in the chambers of Judge Glickfeld. Present at the meetings were the judge, counsel for Morris and Beasley, and an assistant district attorney. Agreements were reached, over the objection of the district attorney, for what Morris describes in his brief as a "'package disposition' of all the five charges." Under this arrangement Morris and Beasley would each plead guilty to the robbery charge and to one of the rape charges. In return the judge promised to refer Beasley to the California Youth Authority, fn. 1 and to dismiss his remaining kidnaping and rape charges. The consideration to Morris was that he would receive a suspended prison sentence and then be placed on probation for three years on condition that he serve [5 Cal. App. 3d 624] one year in the county jail under the "Work Furlough" fn. 2 program; his remaining charges would also be dismissed. fn. 3
On February 21, 1969, Morris and Beasley appeared in court with their attorneys. Counsel asked leave to withdraw the previous not guilty pleas and to enter "new and different" pleas. Judge Glickfeld responded: "It is my understanding, just so we get this straight, that both of you men are going to enter guilty pleas to a 211 [robbery], Second Degree, and to a 261 [subd. 4], which is the rape charge?" Defense counsel agreed that such was the understanding previously reached. The judge then said: "I will tell you what this means and what I intend to do. And there is a third charge which is kidnaping with intent to commit robbery. And it is my intention at the proper time when the probation reports come in to dismiss that charge pursuant to section 1385 of the Penal Code."
Addressing Beasley, Judge Glickfeld then said: "Now, I said upon a plea what I would do is refer your matter to the California Youth Authority. And after you plead your attorney would make a motion for probation, and it takes about 3 weeks. And you would remain on bail or OR fn. [4] and after we get the report it is mailed down to Sacramento for approval by the Youth Authority and it takes about 10 days. So that takes about 4 or 5 weeks. And after we get the acceptance we will set a date and you will come in. And if you are accepted, then you will be sent to the Youth Authority for whatever rehabilitation program they have down there. ... That is what I intend to do, and I put it on the record so there is no question." Turning to Morris, the court said: "[I]t is my intent to treat your case as follows: State Prison, suspended, and put you on probation for three years, and one year in the county jail as a condition on a Work Furlough. ... You will have to go in every night or whatever it is."
A moment later the judge announced: "It would be my intention to dismiss 1 [rape], 3 [rape], and 4 [kidnaping] on Mr. Morris." Questioned by the court clerk as to the disposition of the remainder of Beasley's charges, [5 Cal. App. 3d 625] he answered: "I am going to take those under submission for the date of sentencing, and it is my intention on March 21st to dismiss them pursuant to section 1385." The People, represented by the district attorney, made appropriate objection to the judge's intended disposition of the cases. And it was stated: "the district attorney's position here is and it has been at all times that probation is not in order and it should be denied here." Each defendant then made a "motion for probation." The motions, as required by law (Pen. Code, 1203), were referred to the probation officer to investigate and report to the court, and the date for hearing thereon was set for March 21, 1969.
Prior to the time set for the probation hearings the probation officer filed his report recommending that probation be denied as to both Morris and Beasley. fn. 5 With respect to Morris the report stated that he was ineligible for the Work Furlough Program because in view of the circumstances surrounding the case he was not a "proper candidate" for that program.
Lois, the victim of the admitted crimes, was directed to be present on March 21, the date set for hearing on the probation motions. On the morning of the probation hearing she was accompanied to the courtroom by a police inspector. This circumstance appears to have been a source of irritation to Judge Glickfeld and he castigated the inspector and his superior officer for their solicitude on Lois' behalf. fn. 6 This factor should [5 Cal. App. 3d 626] have been of no concern to the judge and we allude to it verbatim in the footnote as indicative of the judge's frame of mind in our analysis of whether the judge used a sound judicial discretion in his determination of the matters here under discussion.
Penal Code section 1204 reasonably requires the district attorney in cases such as this to have the victim present at the probation hearing. That section provides that at the hearing circumstances of aggravation or mitigation "must be presented by the testimony of witnesses examined in open court" and by report of the probation officer as provided in Penal Code section 1203. fn. 7 Nor is it unusual in cases such as this for the victim of the crime to be escorted to the courtroom by a police officer assigned to the case. There are several reasons for this practice; one is particularly apparent here. As permitted, but not required, by law the judge had ordered that Morris and Beasley might remain at liberty on bail after their guilty pleas. They, and possibly their friends and relatives, would necessarily travel through and on the public corridors and elevators of the courthouse, to and from Judge Glickfeld's courtroom. It seems idle even to point out that Lois should not be obliged to chance an unescorted confrontation with her self-confessed ravagers or their friends.
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