*1 4, 1962.] 7022. In Bank. June No. [Crim. PEOPLE, HARVEY Respondent,
THE Plaintiff and Appellant. DOWNER, ROBERT Defendant *4 for Defend- and Kenneth Wilshire Callahan G. William P. Appellant. ant and Maier, Attorney General, H. Assistant Mosk, Doris
Stanley Deputy Attorney Foran, Attorney General, John F. and Respondent. General, for Plaintiff judgment of appeals from a McCOMB, J.Defendant after trial before attempted incest, guilty of the crime jury. People, the record light most favorable
Viewed in the following facts. discloses the in a two-bedroom his lived daughter, and son his Defendant, Trinity Lewiston, County, California. trailer house outside separated bedroom composed of one back trailer was The bedroom a bathroom. second another bedroom from occupied beds, lower of which was two bunk contained daughter, upper by son; his defendant’s and the by defendant occupied Bonita, the back bedroom. his p. m., went into about 10 sat her after had retired. He
daughter’s bedroom she her, to talk bed, awakened and said he wanted with her. She coming into there, for had been the reason he was he knew he purpose since 1957. At the time bedroom for the same her wearing only his She he was underwear. entered the bedroom father for two struggled against of her about advances During in her entire time he room. hours, that is, tearing struggle pajamas, her bottom of removed the got on underwear, so. He then his them as he did removed relief.” He had top her, that he “wanted some said upon perpetrating daughter these acts his since been always effect that he and had used same words daughter struck “wanted relief.” He his several times with a knife and threatened her if she did lie still. position her, on girl’s vaginal After defendant assumed his there was penis physical his area. contact between penis, put hard,” she He his which described as “more or less only part way, the extent of about inch or an half, during inch and and made motions to some extent period of this contact. 16-year-old Gary Downer, slept son, defendant’s who
805 bedroom, the bunk bed the other had observed his father go into his sister’s bedroom and about 15 minutes later heard begin crying moaning. her This continued for and about 45 parts to an hour. also heard minutes He conversations girl between his and his in which the said, “No, father sister, you you are,” you no,” “Who do think “You think are a privileged character,” wrong,” “You know it’s and remarks of a similar nature. 16, 1959, again On defendant entered his
daughter’s gone after bedroom she had to bed. She knew struggled against what he wanted and his advances. De- “just fendant stated that get wanted to some relief.” again wearing only He was underwear, girl his and the had wearing pair retired pants and blouse. Defendant tore pants during off her and struggle blouse in which she During tried to his struggle resist advances. she suf- bloody nose, fered a defendant and twisted her arms. A pillowcase and sheet girl’s stained with from blood nose were recovered from on the trailer December night theOn accomplish 16th any type defendant did not of sexual contact with his daughter, but he did make an effort to do so. finally He angry became and left. evening this again On same the son observed Ms father go girl’s into the bedroom, and about 15 minutes later heard crying moaning. her crying He heard moaning this continue for 45 minutes to an hour. He also stated that type activities of place that took on the 5th and 16th had gone on since about a month after he had moved with his father and sister. perpetrated daughter on Ms Defendant had acts similar on December 5 about to those that occurred once month or every she had two months since come to live with Mm. once There was evidence of a conversation December 5 between daughter and his in which he her told if ‘ ’’ put in, clear not lie still he would and on certain she did to stick her with a if occasions he had threatened knife she not lie still. did That the
Defendant contends: First. evidence is insufficient attempted support his conviction incest. is devoid of merit. rules are This contention These here applicable: attempted complete crime of incest if
(1) The is (a) to show the concurrence of the intent evidence sufficient together though (b) in- crime, to commit such a direct, 806
Thomas, effectual, Camodeca, 52 Cal.2d Gallardo, (2) acts done toward 41 Cal.2d To Cal.App.2d 571, constitute attempted incest, its commission. [12] [1] [338 [1] [331 P.2d the defendant’s 903] 29] (Cf. People v. ; ; People go beyond preparation must reach conduct must mere enough accomplishment of the desired far toward result (Cf. People amount to commencement of the consummation. *6 Franquelin, v. 109 784 P.2d [5] [241 design (3) person a to a commit crime Whenever of clearly shown, slight is done furtherance thereof will acts attempt. (People supra, p. constitute v. at 574 Thomas, [4].) attempted accomplish to the crime (4) In order any penetration. necessary there be not that incest, it Gleason, 1111, Am.St.Rep. 359 (People 99 P. 37 v. Cal. [33 Cal.App.2d 76, Esposti, 78 P.2d People 82 56] ; v. [2] [185 cf. p. People Thomas, supra, [2].) 574 at 866] ; v. rules, foregoing facts to the it is Applying the above attempted to commit incest. apparent that defendant engaged had been discloses that defendant record The daughter since was his with his It relations sexual bedroom, oiffy in into her dressed his under- practice to come just “relief” before he that he wanted some wear, and state upon perpetrate act her. would only in 16, 1959, dressed his defendant, On daughter's after underwear, into bedroom she had came his gone bed, and that he wanted some “relief.” stated She began struggling against he wanted his sexual knew what and During struggle gave bloody her a advances. clothing arm, tore nose, her and her off. twisted Clearly foregoing that facts established defendant was attempted guilty of incest. 308], People and 2 527 Miller, Cal.2d People v. [42 317], defendant, relied on 40 709 [256 Cal.2d
Buffum, present from the case and state distinguishable factually are attempts. respect to only general rule Cal.App. 401], P. also relied 540 [241 Parker, involving a conviction for defendant, was a ease on 288, lewd and lascivious acts Code section Penal violation child, prior It the 1937 amendment. on perpetrated rape, either acts showed intent the defendant’s that contended rape, rape, with intent to commit or assault to commit consequently he held for a that he could not violation sec- it then tion 288 as read.1 rejecting argument, simply
In the court held that the kissing rubbing acts of the defendant the victim could perpetrated separated from the other acts which he on question for child; that the was one fact that jury; and impossible jury not for to conclude that formed rape the intent to after he had the crime committed denounced by section 288 of the court Penal held that Code. finding jury and conviction for violation of section upheld despite 288 of the Penal Code could be the fact that might the defendant’s other acts have been sufficient jury guilty conclude he was other crimes as well. say subsequent
The court did acts of the insufficient in support defendant were themselves to attempted rape, for rape, conviction or assault with intent rape. to commit People Rossi, Cal.App. 916], P. also relied by defendant, involving awas case likewise a conviction
for violation of section prior 288 of the Penal Code to the 1937 amendment. The defendant was discovered with a small girl lap up on his girl with his hand her saying, dress and the *7 “It hurts.” When the of activities the defendant were inter- girl rupted, escaped grasp, the from his at which time private parts witness observed that the defendant’s were out exposed. of his trousers argued and The defendant that the rape attempted crime was that and he therefore could not be provisions convicted under the of section 288 of the Penal Code as then read. appeal,
On the court held there was no evidence that the child, had defendant sexual with the in intercourse and fact girl the testified that he did not. also She testified that when statement, hurts,” the “It referring she made she was to the hugging body pressing of her defendant’s and her. The court ample that there of held was evidence lewdness and that if it possible were so clear that no other conclusion was that but by defendant did commit acts denounced other the sections Code, might agree of Penal then it the defendant’s contention, but that the evidence warranted the verdict, and provided 1Section 288 of the Penal Code at that time that eonvietion depend upon for a violation the section had to an act than other acts constituting other crimes denounced the Penal Code. preparation. frustrated accomplish his from determination Robinson, committed constitute In the reviewing responsibility present case, defendant’s and which ’’ his court of the trier objective crime of daughter’s was those not went attempted jury fact that defendant’s of fact. 745, at resistance does well acts which determined liberty to past incest. conduct [3], interfere with had [4] were sufficient stage (Cf. in already efforts were relieve seeking of “mere Cal.Rptr. been him jurisdiction superior court lacked That the Second. charged in third attempted as try incest defendant for count of information. complaint A is likewise untenable. criminal This contention in of the Weaverville Judicial filed Court Justice crime Trinity County charging with the District daughter. his alleged to been committed with have incest rape. charged with forcible In a second count defendant committed on Decem- alleged to have been Both offenseswere 1959, it is from the record same 5, ber and clear charges. the basis for both transaction furnished preliminary magistrate, At the examination before the 1959, daughter testified: On December resided with her she County. Trinity in a father trailer house Her father came sleeping quarters her between 10 into and o’clock that ’ " ’ why night. He he wanted some relief. stated She knew argument struggle was there. There was an extensive and slapped they them, between each other around. He was trying to tear off He her clothes and succeeded. was dressed underwear, removed, having in his which he succeeded thing previous her. on intercourse with had done the same He period years, occasions over a of about last two six five Trinity County. occurrences in also testified that she and She fight night her father had her bedroom about sex on the although and that no relations oc sexual thing night, as taken curred it was the same sort had place on December 5. testimony following preliminary at the exam- gave the She concerning the events December 16 17: ination Halpin, attorney, “Q. [by defendant’s cross-exami- Mr. *8 you mentioned the occasion of the visit to Now, nation] your leaving Attorney is home, involved brother District A. correct? Tes. any “Q. fight of kind he left? Was a A. The there before
night [I.e., 16, before. December 1959.] “Q. going probably detail, into because And without just general irrelevant, way, in a more or less but what was Well, my fight my fight father and I about? A. had night. bedroom you "Q. Your father and did? A. Yes. your “Q. part play Well, in that? no What did brother A. part, suppose but I he heard it. fight “Q. And was the about sex? A. Yes. “Q. thing? it the same sort Yes. Was A. Why you “Q. say you suppose your brother it? do heard hearby Well, he
Was ? A. the other bedroom. [sic] “Q. any Did he come the room at time? A. No. “Q. fight? What was the outcome of that A. IWell, wound up bloody got with a nose and he mad and left. “Q. I take it no there was sexual relations? A. No.” [sic] sufficiency foregoing justify
The of the an order of com- question, mitment is without magistrate and the held the accused to complaint. superior answer to the court on both counts attorney
The district thereafter filed information based on the of commitment, order charging both rape and incest. Count one of charged incest; information count two charged rape. alleged Both offenses were to have been com- mitted on December attorney 1959. The district added count charging third attempted alleged incest to have been committed on December superior
Counsel defendant moved the court under sec- tion 995 of the Penal for an setting Code order aside the information, ground that defendant had been legally magistrate committed and had been committed probable without reasonable or cause. motion The was denied, upon cause to trial went all three counts. jury acquitted charge of committing rape 5, disagreed on guilt as to his of the crime of incest on the date, guilty same attempted and found him incest on charging committed December 16. The count incest prosecution. was dismissed motion The record discloses that the attempted count of incest related to and connected the transaction which formed part basis order. It was a commitment defend- ant’s course of engaged conduct which he had in with his daughter long period over of time: and there was sufficient *9 considering examination, preliminary at the adduced evidence attorney to whole, permit the district a to proceedings as
the support filing the of attempted and to incest add the count the information. objection filing of to the is no constitutional There a but related crime shown charging different information magistrate bearing on the the taken before by the evidence (Paries order. in the commitment involved same transaction seq. et Superior Court, 38 Cal.2d [241 interpreted Superior supra, this court Court, In Parks v. Although in that case the facts the Penal Code. section 739 of present case,2 the lan from in the distinguishable those are guage prior appli is disapproving a decision case of the Parks way present the It was there said: general in a to case. cable Wyatt, to the decision doubt attaches “Greater the There defendant Cal.App. 180 901]. grand theft. The district on three counts held to answer In the final the attorney counts. outcome added five similar to on one of added counts as convicted defendant was hearing preliminary at that the which there was evidence involved was The transaction offense had been committed. concerning there at the which was evidence one several plan preliminary hearing to a common scheme or show of a transactions within series of similar the commission years. nothing opinion in the to But there period two is any way related or transactions were show that these connected(P. (Italics added.) 613.) Wyatt
People v. involved situation where defendant by the of a count added to the information convicted Opal attorney testimony of one on the basis district hearing. Dempster preliminary The transactions with at order, Dempster not the basis of the commitment were Mrs. alleged similar although order involved offenses such Dempster. testimony of complainant than Mrs. Mrs. other hearing merely Dempster preliminary at to was offered Wyatt. intent and scheme show common present situation, distinguishable from where there That is between the a continued series of illicit relations same prosecutrix. and the parties, defendant magistrate ease, to dismissed as Parks had the defendant 2In the ground did not that the evidence a transaction with one Palmer attorney public there had been committed. The district show offense charging defendant with a the information after added a count to disapproved pro This court crime as the Palmer transaction. cedure. supra, carefully Court, this court Superior In Parks apply foregoing conclusion does pointed “The out: ait As to charges lumber transaction. based the district indicated herein was ordered. As commitment magis- although the might a related attorney include offense did impliedly or otherwise the evidence concluded trate not probable offense had been com- cause that such show charges as the theft of the lumber mitted. The related, payment giving a worthless check thereof were *10 of the transaction which was the basis for the com- arose out depending on and, evidence, the could result in mitment charge attorney the conviction on one or other. The district right grand was therefore within his include to theft charge necessary if the information of elements reasonably appeared from the offense evidence before magistrate. Consequently as to peti- this transaction the legally tioner has not shown that he was not committed.” (P. [4].) 613 discharged by was not magistrate Defendant at his preliminary hearing ground public that no offense had been committed. On the contrary, he was held to answer magistrate on both counts of rape alleged incest and to have occurred December 5. testimony There was adduced at preliminary hearing of of a series period incestuous acts over a of time, including “probably five Trinity or six County. times” In each pattern instance the same was followed defendant. The testimony regarding the on events December 5 can be in ascertaining considered the intent with which defendant daughter’s entered his bedroom on (People December 16. Vetrano, Cal.App.2d 102 627, 634 ; cf. P.2d [5] [228 42] People v. Hamilton, Cal.App.2d 88 398, 401 P.2d [4] [198 People 907] ; v. Smithle, 51 693, 695 [1] [125 553].) In this of addition to intent, evidence there was evidence preliminary hearing at the that defendant had entered his daughter’s bedroom December 16 fight and had a fight her “about thing.” sex” that the was “the same sort of expression clearly The latter referred to the events of which complaining witness had related in detail. Sufficient showing evidence probable support cause to charge attempted alleged incest to have occurred on Decern-
file the provisions ber ing, Horton, 191 Superior but related Dean, and, count 1959, therefore additional Court, accordingly, the district crime Cal.App.2d 572, Cal.App.2d 592, 597 [13 added to section supra, 38 Cal.2d bearing count was on the same presented attempted incest information [1] 609, 612 et attorney Penal Code. at the transaction Cal.Rptr. 33] ; People charged a different preliminary hear had pursuant seq.; involved (Parks v. right to the order. commitment deprived right his constitutional he was That Third. counsel. alleges that Defendant is unfounded. contention This attorney of consultation with his opportunity denied guilt his attorney and convinced of so indifferent that his aor a farce sham. trial was that the applicable: rules are here These brought magistrate first before an accused is (1) When immediately must informed of following arrest, he his right every charge him to counsel against his at the stage (Pen. proceedings. Code, 858.) § person right complete has the (2) An arrested attorney. (Pen. 851.5.) telephone Code, call to § Any attorney may prisoner visit a at (3) either the (Pen. request or the of a prisoner’s request relative friend. 825.) Code, §
(4) magistrate person must The allow the arrested may postpone to a time obtain counsel the reasonable (Pen. purpose. the for Code, accused such examination 860.) §§859, (5) Upon request of a defendant, magistrate the the require peace message any officerto a must take to counsel judicial may name in the the accused in whom the court is situated. district which (Pen. Code, 859.) § (6) employ If accused desires and is unable to assign counsel, (Pen. the court must counsel to defend him. 859.) Code, §
(7) In any showing the absence of in the record that contrary so, presumed be that duty must the official forth set statutes regularly enumerated above was performed. (Code Proc., 1963, 15 ; People Civ. subd. § Citrino, 33 Cal.2d Cal.App.2d 651, 46 797, 801 Cal.2d 284, [2] [205 [1] 287 [2] [294 662] 850].) P.2d ; People Ry an, 32] ; In re Smith, that
(8) a defendant asserts Ms constitutional When representation of counsel been adequate violated, has right to sustaining allegation upon rests him. the burden Cal.Rptr. (People Robillard, 55 Cal.2d [8] [10 358 P.2d by represented stages counsel at all Defendant was request permit proceeding. No for continuance to preparation further consultation and was made or on behalf nothing in and there is the record to defendant, indicate adequately represented by that he not his counsel that his he was dissatisfied with counsel’s services.
Furthermore, that, among the record shows other things, counsel made a formal motion to prose- defendant’s cuting have the privately him; witness discuss case with moved for change a challenged under 1033 of Code, venue section the Penal special jury panel and caused venire to be obtaining called; ruling preventing succeeded the district attorney calling a from who witness would have testified to person incestuous acts committed defendant with a other prosecuting witness; objected than the ques- certain prosecuting ground tions asked witness on the they leading questions. were It is obvious defendant has not imposed met the burden upon showing him right that his constitutional adequate representation by competent counsel has been violated. That Fourth. trial give court’s failure instruction on prejudicial circumstantial evidence was error. argues This contention is unsound. Defendant that the evi- upon dence which his conviction was entirely based was cir- mandatory cumstantial therefore it was for trial court give motion to its own an instruction that circumstantial only evidence must guilt consistent with defendant’s theory but must be irreconcilable with the of innocence. prosecution bulk of the evidence consisted of direct testimony of the victim as to acts of night defendant on the of December 16. Defendant made statement when he entered daughter’s only his bedroom dressed his underwear that he relief.” This statement his “wanted some showed intention daughter. to have sexual relations his The words had a meaning daughter, they well-understood because were prior same words on a number of had used occasions *12 upon jury when he forced himself her. Thus the could con- upon clude, defendant’s own statement, based that had requisite specific perpetrate intent the crime of incest. the
814 stantially, upon struction [hearing Williams, Cal.App.2d 238, 242 prosecution did not rest on circumstantial evidence denied Fifth. 301, 302 by Supreme circumstantial That the trial court Cal.App.2d 328, [2] [338 [3] Court] cf. its case evidence, was not 483] ; erred in its instruction wholly, [5] [318 ; People Roberts, required. (People hence an in or even sub P.2d Ely, 106] reads: “. . the giving paragraph, last which . 15 in the No. worthy the testimony witness one belief of sufficient for of finding justify any accordance proof and would of fact testi number witnesses have even testimony, with such if considering case, the the cooitrary, to the ivhole if from fied weighing the various credibility witnesses and factors after you probability or that a balance evidence, should believe honesty accuracy the one wit pointing the exists ness.” argues that Defendant the is untenable. This contention paragraph in instruction No. 15 was giving above of the only two witnesses for witnesses were the error because the having neither taken the stand prosecution, defendant the himself nor offered any in his defense. witnesses must be read in paragraph of instruction No. 15 The last preceding paragraph instruction, of said context with the not decide in “You are bound to which reads as follows: testimony conformity of a number witnesses with the your mind, against produce not as which conviction does presumption or a or number other declarations of lesser convincing your with more appeals to mind evidence which you liberty not mean that at of law does are force. This rule testimony greater disregard number of witnesses merely prejudice, or from desire to favor caprice from against you that It does mean are not other. one side as counting simple process to decide an issue opposing sides. of witnesses who have testified number number of final test is not in relative It means convincing force of the witnesses, in the relative evi- but ’’ dence. prejudiced giving of not only was defendant Not rights Ms were No. but of instruction paragraph last given by the court by other instructions fully protected jurors. imposed upon duties fairly fully disclosed particular that if a were to the effect instructions These jury disregard it, applicable, was to instruction
815 instructions was to be the entire set of as and that considered regarded light They in the of all each others. and whole they judges the that were sole of were instructed the credi- bility rely witnesses; the defendant could to of choose upon of and if failure, any, on the state the evidence the of prove every People charge essential element of the against him, the testimony part no lack of on of and the defend- proof by supply People of failure the so ant would as to by finding against any him on support element; itself such essential deny the failure of explain and that defendant to or against by imply, him did not evidence itself warrant of, guilt, prosecution nor it prov- inference did relieve the of every ing of guilt essential element crime the the and of de- beyond a reasonable doubt. fendant given Sixth. That the court should have further limiting given as instructions to the testimony the effect specifically relating to the act in that such of testimony by jury only should be considered pur for pose indicating disposition the incestuous of of defendant bearing upon his intent to commit the act December 16 of which he was convicted. This contention is also unfounded. The court instructed jury regard to evidence of other offensesin fol- lowing language: “Although evidence was for offered purpose showing that on more than one occasion the daughter indulged defendant and his in acts of sexual inter- you course, permitted are not to deliver a guilt verdict of you this case unless find the defendant committed the specific which, prosecution alleges, offenses commit- were ted; to on days wit or about the 5th and 16th of December, any “Evidence other incestuous conduct the defend- may by you only ant be considered as, the sole purpose tending of, if show, does, it disposi- the incestuous tion daughter the defendant toward said and for what- may bearing question ever have of the intent of the alleged defendant at the time commission of the offense for which he is on trial.” here supra, supra, 51 This Cal.App.2d 693, 88 102 instruction was Cal.App.2d 398, properly given. [1].) 401 [4] ; 634 [5] ; People (People Smithle, supra, v. Hamilton, Vetrano, applicable It states the rule of instances, law in such that is, that the admissibility test of other offenses is
whether ence defense. overcome Cal.Rptr. 896].) to establish it tends (People any material logically, any Bowles, fact material matter naturally, sought Cal.App.2d 317, to the to be prosecution reasonable proved by [2] infer or to fully fairly jury instructions informed the The above of other they were to treat evidence offenses of a similar how prior to the offense of which defendant was nature committed convicted. instructing the trial court erred in That Seventh. jury: attempt “An to commit a crime consists two ele *14 of namely, specific crime,
ments, a intent to commit the a and clone its act toward commission. direct but ineffectual determining done, not an act “In whether or such was it is preparation, necessary distinguish between mere one doing hand, commencement and the actual crimi- of of may preparation, which deed, nal on the other. Mere consist obtaining arranging planning devising, or of the offense of commission, means its is not to constitute an sufficient of person a who intends to commit a attempt; but acts crime of they attempt clearly will constitute an where themselves indi- certain, unambiguous specific a intent commit that cate and, themselves, present crime, step in are immediate in an design, progress execution criminal which would interrupted by completed some unless circumstances not original design.” intended (People was a correct the law. This instruction statement of 785.) Franquelin, supra, 777, v. Eighth. judge error other than That it was for presided pronounce who at the trial the case to the one judgment sentence. and pronounce App.2d for This Cal.App.2d. judge contention 458, 460 judgment other 245, [1] is incorrect. than [2 and sentence. Cal.Rptr. the one who tried [4] et It is seq. 190] ; settled that it is not (People cf. People criminal Cole, Connolly, 177 Cal. ease error prejudicial Ninth. That there error in that was had ivas not ashed at time sentence if defendant why legal judgment pronounced against cause should not be him. appear untenable. not
This contention is It does from the why legal if he was asked he had cause to show record whether judgment pronounced not have at time he should been was merely transcript indicates that sentenced. The pronounced. guilty and adjudged sentence showing presumed, in absence of a to the It must be statutory requirements respect with to the contrary, that the sentencing regularly judgment were arraignment Proc., 1963, 15 ; (Code subd. performed. Civ. § supra, 284, ; Smith, Citrino, supra, In re 46 Cal.2d 287 [2] contrary showing [2].) No to the 797, 801 33 Cal.2d present case. made judgment is affirmed.
The Schauer, J., J., con- Traynor, J., White, Gibson, J.,C. curred. PETERS, I dissent: J. which offense of has been convicted This defendant complaint charged original properly charged. The
he was rape incest, being alleged counts, defendant, two daughter against defendant’s that both acts were committed hearing prose- preliminary 5, 1959. At the on December cuting acts were committed on testified that these witness fight over the “same testified that that date. She also 16, committing thing” occurred on December 1959. sort to answer on the magistrate properly held the defendant charging rape and incest on December two counts attorney subsequently the informa- But the district filed when only rape on December tion, charged and incest he not *15 charging attempted in- third count 1959, but also added 16, proper for defendant took on December 1959. Counsel cest dismissed, third count but was unsuccessful. means to have this opinion points out, jury acquitted majority As the rape disagreed 5, 1959, on December on the defendant 5, 1959, and found charge of incest on December guilty of attempted incest on December contemplates expressly of this state The Constitution only person prosecuted shall be after he is provides that by charged information, or and in the latter case indictment only by magis- examination and commitment then “after 8.) (Cal. I, 739 of the Penal art. Section trate.” Const., § duty attorney provides it shall be the the district Code charging commitment, file information the de- after in the commitment the offenseor offenses named fendant with by taken any or shown the evidence be- offense offenses “or Interpreted magistrate to have been committed.” fore the quoted language in a vacuum, the could mean that the dis attorney charge trict could in any the information offense by magistrate. shown the evidence before the But the lan guage of the code section is not in a It in vacuum. must be terpreted in connection with the Constitution which contem plates provides that the defendant shall be forced to trial only charges for such as set forth are in or related to those in the contained commitment In a long of cases, order. line interpreted section 739 has been to mean that the district attorney may properly charge only the defendant with the offensesof by which he has been held to magistrate answer any and with other offense that the evidence shows is “re lated” or “connected” with the offense or charged. offenses determining In what offenses are “connected” or “related” to the offenses for which defendant answer, has been held Appeal held, the District Court of Wyatt, Cal.App. 180 901], that the district attorney, [8 under (then 809) section 739 charge any Penal Code, properly could by offense disclosed prelimi evidence at the nary to have been connected charged with the offenses in the part sense was plan.” “common scheme or This case specifically properly by overuled this court Parks Superior Court, 521], Cal.2d That case held the offensesto be added attorney the district must be “connected” or “related” to the offenses set forth in the they commitment other than part because were of a were, plan precise common or scheme. The words of the court speaking Wyatt “The transaction case, involved [the charged by one attorney the district found the order of concerning one of several which commitment] evidence at there was preliminary hearing to show a common scheme plan for the commission of a series similar transactions period years. within a of two But nothing there is in the opinion to show that these any way transactions were in re lated or language connected. Therefore opinion in that [the Wyatt may which case] deemed inconsistent with the expressed views herein disapproved.” (38 p. 613.) Cal.2d at In the Parks case committing magistrate held the de- fendant to answer charge that he had violated section 476a the Penal (intentionally Code writing a bad check). information filed attorney charged district de- grand fendant with theft Palmer, from one intentionally writing a bad check for $843.76, grand and with theft of having lumber a value of $843.76. It was held that
819 related to or connected against Palmer was not alleged offense upheld the lumber But the court count. the bad check with attorney, added the district charge which was grand theft charges lumber and to the theft the stating that, as “The payment thereof were a giving of check the worthless the basis the transaction which was out of related, arose and, depending evidence, could result the commitment at- the district charge on one other. The in conviction grand right torney within his to include was therefore necessary charge in information if the elements theft reasonably appeared from the before that offense evidence Consequently petitioner magistrate. to this transaction the as (At p. legally that he has not shown was not committed.” 614.) that, preliminary, if at the evi court then held Thus, this charged an not but that is offense dence introduced is at charged, is the district crime that
integral part of the information; offense torney may that related include been consistent may This has not include it. otherwise he appellate interpretation courts this state of section charge manslaughter if on Thus, a case. 739 and the Parks may preliminary at offense evidence is introduced may charged in in then murder have been murder, 706] ; 229 (People McGee, 31 Cal.2d P.2d formation v. [187 Bird, 23]). Or, People 212 632 P. v. where cf. Cal. [300 288 charged, and evidence of Penal Code section violation 288a that the defendant also violated section is introduced deadly in weapon, then an or threatened the victim charging adding formation can be filed counts violation (People Evans, v. 39 Cal.2d 249 section 288a P.2d [246 Cal.App.2d People Grimes, 932]) 636] ; v. [307 deadly weapon (People Evans, supra). with a or assault complaint charges assault to commit And rape, with intent where can an information be amended add counts of at tempted rape charges where added and assault “were girls against original in the offenses the same named informa predicated testimony upon their were as to the tion and same underlay charges two occurrences which set forth in the original (People information.” Cal.2d Tallman, 27 [163 majority The cases cited do announce a dif In Horton, ferent rule. 592 Cal.Rptr. 33], committing magistrate held the defendant rape. statutory for two counts of to answer The district at- *17 adding torney two counts of an information violations of filed Appeal upheld The District Court of Penal section 288. Code ground that each of the the information on offenseswhich rape charge also constituted the basis of the the basis were the 288 stated, charge. court “It is clear from The the record appellant to each count as to which the herein as convicted, the same transaction which was the basis for the provided the commitment order elements the crime of appellant guilty.” (P. 598.) which the was found People Dean, 929], And complaint charged grand in two counts with theft of Vehicle and with violation Code section 503. Both charged taking of these counts the felonious of an automobile preliminary, appeared on a certain At date. that the by appellate defendant took the car a threat of force. The properly upheld court an information that added a count for robbery clear, of the same auto that same It date. however, that when the connection between the offenses charged in the commitment and evidence of other crimes they only by is such that are plan connected a common design, may properly the other crimes be included by attorney. the information filed the district That is the plain precise, unambiguous holding of the Parks case. majority, attempt distinguish actually that case, hold that the may added offense be only included when its “ charged connection with offenses is that n each instance [i] pattern the same was followed p. (Ante, defendant.” 811.) holding In so majority, purporting while to follow Parks, actually overrule it. This cavalier prior treatment of a decision not be should countenanced. If Parks is to be over- frankly ruled it should be done and not indirection. charged The offenses here to have been committed on 5th, are, December course, separate and distinct offenses charged from the one to have been committed on December 16th. Proof of the December 5th offenses, though even com- against mitted person, the same has no sep- relation to the arate and alleged distinct offense to have been committed on only 16th. The connection between the offenses is they are related or connected they part because are of a plan common or scheme. Under the Parks case this is not enough.
The fact that the evidence sustains the conviction is not significant. provisions The beneficent VI, article section application of the Constitution have no to the violation 4% right. of such constitutional judgment ground I would reverse that the trial jurisdiction court had no offense which defendant has been convicted. J.,
Dooling, concurred. Appellant’s petition rehearing July 3, for a was denied opinion Peters, J., petition was of the that the should granted. *18 4, 1962.] No. In Bank. June
[Crim. THE PEOPLE, Respondent, Plaintiff and v. RICHARD Appellant. Defendant and
MILLER,