Fisher

Gregory David Fisher appeals after a juiy found him guilty of burglary (and while committing the burglaiy he was armed with a deadly weapon and assaulted a person), forcible rape, oral copulation (with the finding it was done by means of force and violence), sodomy, assault with a deadly weapon (with a finding he used a firearm) and grand theft. He was diagnosed as a mentally disturbed sex offender and after examination was committed as a mentally retarded sex offender pursuant to Welfare and Institutions Code section 6509.

On October 18, 1973, Fisher entered the apartment of Monty Hewitt, threatened her with a pair of sewing scissors and forced her to participate in various sexual acts. The intruder asked Hewitt if her family had a gun. When she told him they did not, he asked, “If you don’t, then what’s this?” and stuck her husband’s pistol in her side. Fisher then threatened Hewitt and her family with violence if she reported the attack. As he was leaving through a window, Fisher told Hewitt he worked at the Sterling Commissary. Hewitt identified him at the Commissary some eight days later. Fisher was taken into custody and given his Miranda rights. He gave an alibi…