People v. Butler

Pursuant to a jury verdict finding him guilty of rape (Pen. Code, § 261, subd. 3), appellant Harrison Butler was sentenced to state prison for the upper base term of five years with an enhancement of three years for a prior felony (murder) conviction (Pen. Code, § 667.5). Appellant appeals from the judgment.

In the fact recital we give both the prosecution and defense versions of the evidence because one of the issues we are concerned with is whether the trial judge erred in refusing to instruct the jury regarding the use of circumstantial evidence.

Prosecution evidence revealed that on April 26, 1978, at approximately 11:45 a.m., Mrs. Emma G., a 68-year-old woman, entered the women’s restroom at the end of Judah Street, near the beach in San Francisco. After relieving herself, she rearranged her clothes and was about to leave when she saw a man “loom” up at the closed stall door. She could see his head, his face, his collar and a little bit of the top of his shoulder. She testified that she had gotten “a very good look at his face.”

The man pushed open the stall door, rushed in and began choking her. She began to “black out,” catching a second “passing” glimpse of his…