THE PEOPLE, Plaintiff and Respondent, v. EDDIE DEAN GRIFFIN, Defendant and Appellant, 60 Cal. 2d 182

McCOMB, J. This is an automatic appeal, pursuant to

section 1239, subdivision (b), of the Penal Code, after a jury found defendant guilty of first degree murder and fixed the penalty at death. Defendant contends: First. That the evidence was insufficient to sustain his conviction. This contention is devoid of merit. December 2, 1961, defendant encountered Eddie Seay and a friend of Eddie’s named A1 on a street corner in Los Angeles and asked directions to the 41st Street Club, a nearby bar. After receiving the directions, defendant gave Eddie a quarter, which was applied toward the purchase of a bottle of wine.

About 9 o’clock Eddie and A1 entered the 41st Street Club and sat in a booth with Essie Mae Hodson and two other people. Eddie had been living with Essie Mae since 1957 and referred to her as his common-law wife. Defendant, who was standing at the counter, was invited to the booth to join Eddie and the group. They drank wine and beer through the evening until A1 left. Essie Mae left about 1 o ’clock, and Eddie and defendant remained in the bar until 2 o’clock. Eddie was fairly intoxicated and thought defendant was, also.

At defendant’s request for a place to stay that night, Eddie took him to the apartment he shared with Essie Mae and told him he could sleep on a day bed in the living room. Eddie then retired to the bedroom with Essie Mae and went to sleep. Later the noise of a struggle awakened Eddie, and he went into the living room, where Essie Mae told him, in defendant’s presence, that she had gotten up to go to the bathroom and that defendant had put his hand over her mouth and tried to make her accept him. Eddie advised defendant to go and drink some coffee, and took him down the back stairs.

On the way downstairs defendant asked if he could come back upstairs and if Eddie would talk to Essie Mae for him. Eddie refused, took defendant outside, and went back upstairs the front way, locking the door. Five minutes later Eddie heard defendant knocking and calling and the sound of glass breaking as defendant let himself in the back door. Eddie got up, put on a pair of trousers, went to the back stairs, and again took defendant downstairs. Meanwhile, Essie Mae went out onto a balcony. At the bottom of the stairs defendant hit Eddie two or three times, causing some injuries.

Eddie was able to break away and ran over to the 41st Street Club, where someone he knew agreed to go with him back to the apartment building. They were unable to find Essie Mae, and Eddie never saw her alive again. About 7 o’clock the next morning Alfredo Villasenor walked down an alley behind the apartment building, looking for a piece of scrap lumber. In the alley was a very large trash box containing several feet of sawdust and some scrap wood. Villasenor saw defendant come out of the box buttoning his trousers and asked him what he was doing. Defendant replied, ‘ ‘Nothing, ’’ and walked away.

Villasenor searched around for a piece of wood and finally looked into the box. There he saw Essie Mae. She had blood on her clothes, was trembling, and had apparently suffered a severe beating. Villasenor called to someone working in an adjacent trailer lot, who, in turn, called the police. The officers found Essie Mae sitting on top of the sawdust in the box. She appeared to be under great shock, was bleeding from the head, and could barely state her name. There was mud on her face, her clothes were wet, and there was blood in the sawdust.

Essie Mae was taken to Central Receiving Hospital, barely conscious and unable to answer questions. She was treated for her injuries, namely, bleeding from the left middle ear; a skull fracture; bleeding bruises on the left side of her scalp, both eyes, forehead, and lips; a 3-inch cut in her scalp; multiple abrasions of her ankles, hip and back; and a lack of blood pressure. Essie Mae died the next afternoon.

An autopsy was performed the following day, and the cause of her death was determined to be “subdural hematoma, which was operated with skull fracture. ’ ’ An examination of her genital organs failed to disclose the presence of spermatozoa. The coroner testified, however, that this would not preclude the possibility of her having had intercourse late on the night of December 2 or early morning, December 3. He also testified that a woman with the extensive injuries suffered by her would be in great pain and it would be very difficult for such a person to engage in voluntary sex relations.

In addition, the prosecution produced expert testimony to the effect that the venereal disease commonly known as gonorrhea would destroy the ability of a male to produce spermatozoa. Defendant admitted to police officers that he had had both gonorrhea and syphilis. There were blood stains at the foot of the back stairs, drag marks in the alley, and blood stains and a woman’s wig in the sawdust box. Essie Mae had worn such a wig.

Defendant was arrested in Mexicali, and when questioned by officers freely and voluntarily told them that on the evening of December 2 he was at the 41st Street Club, where he met Essie Mae, Eddie, and some other people and had a number of drinks with them; that during the evening he gave Eddie a $10 bill with which to buy some wine; that Eddie disappeared with the change after an argument; that Essie Mae also left; that he inquired where they lived and went there; that Essie Mae let him in and, after some discussion, told him not to worry, that she would make good the missing change by letting him have intercourse with her; that they had just begun when Eddie came in the room and started a fight, in which Essie Mae joined and which continued down the back stairs and into the alley; that Eddie ran off; and that Essie Mae, even though she had been hit several times in the fight, took him to the trash box, where she voluntarily-engaged in the intercourse.

Defendant said he left the box when he heard Villasenor, who he thought was a watchman, pass by. The foregoing evidence substantially sustained the findings of fact of the jury. In a criminal prosecution the weight of the evidence is for the jury to determine in the first instance, and the trial court after the verdict in the second instance.

If, as in the present case, the circumstances reasonably justify the verdict of the jury, an opinion of this court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. (People v. Wein, 50 Cal.2d 383, 398 [13] [326 P.2d 457]; People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) People v. Craig, 49 Cal.2d 313 [316 P.2d 947], and People v. Granados, 49 Cal.2d 490 [319 P.2d 346], are clearly distinguishable from the present case.

In neither case was there direct or circumstantial evidence that the defendants had raped, or attempted to rape, their victims; and in the Craig case the only circumstantial evidence relative to that issue tended to the conclusion that the defendant did not attempt to perpetrate a rape (49 Cal.2d at p. 318 [2a, 3]). Under those two cases, evidence that the defendant has brutally beaten or murdered his victim is insufficient to establish an intent to commit rape. In the present case, the evidence is sufficient to establish an attempted rape.

First, there was evidence of defendant’s assault on Essie Mae while she was in the apartment and his failure to deny her accusation that he was trying to rape her. Second, defendant was seen buttoning his trousers as he walked away from the trash box, where Essie Mae sat bruised and bleeding. (Cf. People v. Cheary, 48 Cal.2d 301, 317 [20] [309 P.2d 431].) Third, defendant admitted that he began

an act of intercourse with Essie Mae in her apartment, entered the sawdust box with her with the intent of having intercourse, and did, in fact, have intercourse with her there. In this connection, the testimony of the autopsy surgeon that a woman with the injuries suffered by Essie Mae would not be likely to engage in a voluntary act of sexual intercourse is also important. The facts which defendant asserts establish his innocence are equally consistent with his guilt. Second. That the evidence of defendant’s assault on Amada Encinas was inadmissible on the issue of penalty.

This contention is likewise without merit. In the trial of the penalty issue the principal evidence produced by the prosecution related to a similar offense committed by defendant on December 19,1961, in Mexicali, Mexico. December 4, 1961, defendant left Los Angeles and traveled to Calexico, where he obtained a job at a cotton compress. There he met a man named Willie Kerr and told him his name was Willie Fairchild. Defendant told Kerr he did not have a place to stay, and Kerr let him have a room at the house which he shared with his common-law wife, Amada Encinas, across the border in Mexicali.

On December 19, 1961, while Amada was preparing lunch, defendant asked her for a towel. When she took it into his room, he grabbed her, hit and kicked her, tore her clothes off, and tried to rape her. He kicked her a number of times and so dislocated her arm that it had to be put in a east for 15 days. He beat the woman severely, but despite the beating she refused to submit to him, and when Kerr arrived home, defendant jumped off the bed. Kerr and defendant engaged in some kind of argument. Eventually the police were called, and Kerr and defendant were taken to jail.

Defendant was brought to trial by a Mexican court on a charge of rape and released. Defendant testified in his own behalf on the penalty issue of the trial. He gave an account of the incident involving Essie Mae Hodson roughly paralleling his story to the police officers, which story had been read at the trial on the issue of guilt, except that he denied having had intercourse with Essie Mae in the trash box. His version of the incident involving Amada Encinas was that she had voluntarily agreed to have sexual intercourse with him for $2.00 and that her husband had come in and given her the beating.

Defendant contends that the trial court erred in admitting evidence, over his objection, of the assault on Amada Encinas, because a Mexican court had, in effect, found him not guilty of that offense, and that its decision is res judicata on that issue. It is established in this state that the doctrines of res judicata and collateral estoppel do not apply at the trial on the issue of penalty. In People v.

Purvis, 52 Cal.2d 871, 881 [4] et seq. [346 P.2d 22], we held that on the penalty phase of a trial the rules of res judicata may not be invoked to foreclose inquiry into relevant circumstances surrounding an earlier crime of which a defendant was convicted, since the fact that his criminal responsibility for an earlier crime has been fixed does not justify denying to the jury charged with fixing the penalty for another crime relevant evidence bearing on that issue. In the Purvis case the defendant had previously been convicted of the second degree murder of his wife.

Upon his trial for the murder of another woman under circumstances markedly similar to those surrounding the killing of his wife, evidence respecting the latter killing was introduced on the issue of penalty. At page 882 [6] we said: “Moreover, in fixing the penalty for the murder of Mrs. Wilson, the jury was not bound by the former jury’s finding that defendant’s murder of his wife was of the second degree.

Although that finding terminated defendant’s liability to further prosecution for that crime, it was based on the evidence then before the jury that may have reflected only a reasonable doubt that a premeditated killing had occurred. Another killing as similar as the one that occurred here might dispel that doubt, and the jury fixing the penalty for the latter killing should be permitted to determine that issue on all the evidence before it without being bound by what another jury concluded on different evidence.

In so doing, the second jury would not be redetermining defendant’s criminal responsibility for the killing of his wife, but fixing the penalty for his killing of Mrs. Wilson.” The same principle is applicable here. Implicit in the verdict of the jury was a finding that the killing was committed during an attempted rape; and in fixing the penalty for such killing, this jury was entitled to consider the circumstances surrounding the crime of which defendant was accused in Mexico, there being a marked similarity between the circumstances surrounding the two attacks.

In each instance defendant had persuaded the man with whom the woman was living to allow him to stay temporarily in the home they were sharing; while defendant was in a room alone with the woman and the man was either away from the house or asleep in another room, he tried to induce the woman to have sexual relations with him and, when she refused, beat her severely. In each instance he contended that the woman had voluntarily agreed to have intercourse with him for a sum of money. As stated in People v. Purvis, supra, at page 881 [5] : “. . .

The jury was entitled to consider this recurrent behavior on the issue of punishment, for it might conclude that the behavior would probably or possibly recur again were defendant given a life sentence and ultimately paroled. ’ ’ The fact that defendant may have received the equivalent of an acquittal in the Mexican proceedings is immaterial. An acquittal is merely an adjudication that the proof at the prior proceeding was not sufficient to overcome all reasonable doubt of the guilt of the accused. (In re Anderson, 107 Cal.App.2d 670, 672 [237 P.2d 720] [hearing denied by the Supreme Court]; cf.

Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal.2d 601, 605.) Accordingly, if evidence of another offense is otherwise admissible, the fact that the defendant was acquitted does not render the evidence inadmissible. (People v. Massey, 196 Cal.App.2d 230, 234 [4] [16 Cal.Rptr. 402]; People v. Crisafi, 187 Cal.App.2d 700, 707 [10 Cal.Rptr. 155] [hearing denied by the Supreme Court].) Third. That the prosecution was guilty of prejudicial misconduct in its argument to the jury on the issue of penalty.

Defendant contends that it was error for the prosecutor to argue (1) that defendant had committed a crime in Mexicali; (2) that defendant, knowing he had a venereal disease, had sexual intercourse with women; (3) that defendant probably lied about his prior record to the Mexican authorities; and (4) that the jury would be responsible if defendant was paroled and then killed, raped, or infected anybody; he also contends (5) that the prosecutor improperly asked the jurors to hold out for the death penalty.

It is settled that the prosecutor may argue any matter helpful to his case as long as he confines himself to the record and those inferences which may reasonably be drawn therefrom. (People v. Atchley, 53 Cal.2d 160, 174 [14, 15] [346 P.2d 764]; People v. Cheary, supra, 48 Cal.2d 301, 317 [20, 21]; People v. Burwell, 44 Cal.2d 16, 39 [33] [279 P.2d 744].) Applying the foregoing rule, it is apparent that defendant’s claims of error are without merit. First, it was not misconduct to characterize defendant’s brutal attack on Amada Encinas as a crime.

Second, the prosecutor’s reference to defendant as one who, knowing that he had a venereal disease, would have sexual intercourse is supported by the record. Defendant admitted that he had had both gonorrhea and syphilis, but this knowledge did not deter him from forcing his sexual attentions upon Essie Mae Hodson and Amada Enemas.

Third, the judgment of dismissal or acquittal from the Mexican court was introduced in evidence at the specific request of the defense, and the prosecutor could properly argue that the jury could take into account the fact that defendant may have made untrue statements to the Mexican authorities about his record at the time he was booked. Fourth, it was not improper for the district attorney to argue that in the event the jurors returned a verdict of life imprisonment, it would be their responsibility if defendant was released and harmed anyone.

He was merely replying to defendant’s argument that the jurors would be responsible if they returned a death sentence and it was subsequently established that defendant was innocent. It is not misconduct for a prosecutor to reply to defense arguments as long as his comments are based on the record, as were these. (People v.

Rosoto, 58 Cal.2d 304, 364 [73] [23 Cal.Rptr. 779, 373 P.2d 867].) Fifth, it was not misconduct for the prosecutor to argue that if any juror to the very end of the deliberations believed that this was a proper case for the death penalty, he should adhere to his view rather than compromise his judgment. This was a proper statement of the law relating to the duties of jurors in their deliberations. The right of a juror to disagree in good conscience with his fellow jurors is a matter of universal knowledge. (People v. Wade, 53 Cal.2d 322, 332 [10] [1 Cal.Rptr. 683, 348 P.2d 116]; People v.

Wong Loung, 159 Cal. 520, 535 [114 P. 829]; People v. Tate, 124 Cal.App. 48, 50 [2] [12 P.2d 102].) In addition, defendant may not now be heard to object to the district attorney’s argument, since he made no objection at tjie time it was made and did not ask the trial court to instruct the jury to disregard it. (People v. Robillard, 55 Cal.2d 88, 102 [21] [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086]; People v. Turville, 51 Cal.2d 620, 636 [20] [335 P.2d 678].) It is apparent that there is no error in the record. The judgment is affirmed. Gibson, C.

J., Traynor, J., Schauer, J., Tobriner, J., and Peek, J., concurred. Since the State of California and the Government of Mexico are not identical parties and were not in privity, and this proceeding is for a different offeilse, this ease does not involve the doctrine of res judicata but, rather, collateral estoppel. (Cf. Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 604 [1] [25 Cal.Rptr. 559, 375 P.2d 439]; 29 Cal.Jur.2d

(1956) Judgments, § 215, p. 169.)