THE PEOPLE, Plaintiff and Respondent, v. CLYDE DEAN GORDON, Defendant and Appellant.
Crim. No. 12829
Third Dist.
Mar. 18, 1985.
165 Cal. App. 3d 839
Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Christine Zilius, Deputy State Public Defender, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Nancy Sweet and Thomas Y. Shigemoto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SPARKS, J.—In this appeal we consider a host of questions arising from the now familiar case in which the evidence establishes more crimes than were charged. Here defendant Clyde D. Gordon was convicted of one count of sodomy with a person under 16 years of age by a person over the age of 21 (
STATEMENT OF THE CASE
By an amended information filed on February 17, 1983, defendant was charged with five felony counts: one count charged sodomy on a female child under the age of 16, alleged to have occurred from on or about January 1, 1979, through November 30, 1980 (
Following a jury trial, the jury returned verdicts finding defendant guilty of the sodomy charge (count I) and three counts of lewd and lascivious conduct (counts II through IV) and not guilty of one count of lewd and lascivious conduct (count V). Probation was denied and defendant was sentenced to state prison. Defendant filed a notice of appeal on the day he was sentenced.
Subsequently, the sentence was recalled pursuant to section 1170, subdivision (d), and defendant was resentenced to a total of five years: the upper term of three years on count I and the upper term of five years on counts
STATEMENT OF FACTS
A. Counts I (Sodomy) and II (Lewd and Lascivious Conduct)
Marla M., who was nine years old when she testified at trial, was living during the period in question in Little Valley, California with her mother Gloria Gordon, then Gloria Ruiz, and Robert Ruiz, her mother‘s husband. She was then five or six years old and in kindergarten and first grade. Defendant and his family moved to Little Valley in December 1977. Defendant, who was later to become Marla‘s stepgrandfather, and his wife Willa lived just up the street from Marla and they were paid to babysit Marla on a regular basis. Both he and his wife babysat Marla after school and on weekends. Defendant‘s sexual misconduct with Marla began at the earliest time in the beginning of 1978. Marla testified to general, unspecified instances as well as more specific instances when defendant sexually touched her when she lived in Little Valley.
The general instances were these: (1) When Marla rode with defendant in his pickup truck, defendant would make Marla sit next to him and would rub her thighs with his hand. (2) From kindergarten to about third grade, defendant touched Marla “lots of times;” “there‘s so many times he did it, I can‘t remember them all.” These touchings were done in “different ways sometimes.” (3) Defendant also touched Marla‘s bottom with his penis (“long thing“) twice. (4) Defendant touched Marla‘s vagina (where she “pass[es] water“) with his penis many times, at least more than five times.
Marla also recounted these specific instances: (1) When Marla was in either kindergarten or first grade, in 1978 to 1979, and while defendant and his wife were babysitting her, defendant took Marla into the tack room at his residence, took off her underpants and touched her vagina, chest, and “bottom” with his hands. Defendant also put his penis (“his long thing with the two round things“) inside of her vagina. Marla thought Willa knew about the incident because Willa was just out in the garden when Marla yelled in protest. (2) On two other occasions defendant touched his penis to Marla‘s anus. On one occasion, date and place not specified, defendant tried to put his penis in her anus and she hollered and cried because it hurt. Defendant kept trying for a few minutes and then stopped. On the second occasion, Marla was camping with defendant and a man named Stan. Marla and defendant slept inside defendant‘s camper; Stan slept outside. One night defendant tried to put his penis inside her anus; it again hurt and Marla
Marla‘s mother, Gloria, testified as a prosecution witness. Gloria married defendant‘s son, Richard Gordon, on August 4, 1979. All the events described by Marla occurred before this date. Marla first told her mother about defendant‘s conduct in November or December of 1980 when Gloria asked Marla if she would like to stay with defendant and Willa while she and Richard went to look for work. Marla stated she would not like that. When pressed for her reasons, she told Gloria what had been happening. Gloria confronted defendant later that evening. According to Gloria, defendant neither admitted nor denied the accusation, but instead turned to Marla and asked “Why did you tell your momma?” The next day, Gloria told her neighbors Barbara Hitchcock and Melissa Turner that defendant had sexually abused Marla. She did not go to the police because her husband Richard told her that if she put his father in jail she better file for divorce. She did not want to break up her marriage. Gloria consequently did not report the incidents to the police until March 1982. Later Gloria went to Oregon to avoid being subpoenaed because defendant‘s wife was pressuring her and because Marla did not want to testify. At one point, Gloria wrote a letter to defendant trying to get him to give her ownership of his truck or $500 and threatening him with prosecution.
According to Gloria, prior to her trip to Oregon with Marla and after charges were filed, defendant told Gloria he did not hurt any other little girls and was sorry for what had happened to Marla. He stated he would get psychiatric help.
B. Counts III and IV (Lewd and Lascivious Conduct)
Brandy W., who was eleven years old when she testified, was approximately seven years old when defendant and Willa babysat her and her brother. Approximately one week prior to December 22, 1978, the date of a friend‘s birthday party, Brandy was in defendant‘s backyard in Little Valley when defendant took her behind the barn during the daytime and stuck his hand down her pants and touched her vagina. Brandy was afraid and did not tell anyone what happened.
On another occasion, one night either two days before or after the other incident, Brandy accompanied defendant in his truck to get Willa a soda. Defendant turned off a private road (Skunk Hollow Road) in Little Valley, got out of the truck, opened the passenger door, told Brandy to lie down, pulled down her pants and touched or “stuck his penis in [her] vagina.” Defendant told Brandy to tell Willa that they had just gone to a bar.
C. Defense
Stanley Stahl testified that in July 1979 he went prospecting for gold with defendant and Marla. As he and defendant were leaving for the trip, Marla cried and said she wanted to come along. Defendant let her come. On each of the three nights Marla slept in the camper and the two men slept outside. Stahl, who was a light sleeper, never heard defendant get up and go into the camper. Marla appeared to be very happy throughout the trip.
Stahl and two others testified that the private road (Skunk Hollow Road) down which Brandy stated defendant drove his pickup before molesting her was virtually impassable during the winter.
Willa Gordon, defendant‘s wife, testified that when Gloria accused defendant of molesting Marla, he said he had never touched her. Later defendant told Gloria he had never touched Marla or any of the other girls and that he was sorry for “everything that was going on.”
Defendant testified that he was 51 years old and had never molested Marla. He told Gloria he never molested her daughter or any other girls in Little Valley, and that he was “sorry ... it was busting up her family . . . .” Defendant also said he was never alone with Brandy and never molested her. He related that he and Gloria had an argument regarding her use of his telephone and that Gloria stated, “I‘ll get even with you, Clyde Gordon.” Defendant believes Gloria concocted the whole story.
D. Rebuttal
Evidence was presented that the first 200 yards or so of Skunk Hollow Road is passable during the winter and that in December 1978 the entire road was hard and frozen.
DISCUSSION
I
Defendant contends that count I of the amended information, charging him with sodomy in violation of section 286, subdivision (b)(2) between January 1, 1979, and November 30, 1980, was barred by the three-year limitations period of section 800. We agree.
Defendant correctly points out that Marla testified to two incidents of sodomy and that she also testified that all the sexual incidents involving defendant occurred before her mother married Richard Gordon on August 4, 1979. She testified as to one incident without specifying its location or date. On that unspecified occasion defendant tried to put his penis (“long thing“) in her anus (“bottom“) and it hurt; he “kept it on for a few minutes,” and then stopped.4 According to Marla, a second incident of sodomy occurred on the camping trip. On that occasion defendant and Marla were inside the camper when defendant put or tried to put his penis in her anus. It was established that this camping trip took place in July 1979.
This statute of limitations contention first poses the question whether, for purposes of stopping the statute, the commencement of the prosecution should be measured from the date that the information was filed (§ 800, as amended by Stats. 1978, ch. 663, § 8, pp. 2133-2134) or from the earlier date when the arrest warrant was issued. (§ 800, as amended by Stats. 1981, ch. 1017, § 1, p. 3925.)5 As we shall see, the answer depends upon whether the sodomy offense was committed in 1978 or in 1979.
During the years 1978, 1979 and 1980 the statute of limitations for the crime of sodomy was three years. Penal Code section 800 then provided that “[a]n indictment for any felony, [except for crimes not relevant here],
Effective January 1, 1982, the limitations statute was again amended. Section 800, subdivision (a) again prescribed a three-year limitations period for section 286, subdivision (b) violations.8 Under this amendment, the running of the statute stops when an arrest warrant is issued rather than when the information is filed.9 To the extent that the evidence showed that the
sodomy occurred during the charged period beginning on January 1, 1979, the amendment applies to this case because it was enacted before the old statutory period had expired. In such a case, “[t]he matter is governed by the rule enunciated by Judge Learned Hand in Falter v. United States (2d Cir. 1928) 23 F.2d 420 . . . which upheld the right to prosecute within a period extended by an amendment to an existing statute if the amendment was adopted prior to the expiration of the original period of limitations. He stated, ‘But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.’ [Citations].” (People v. Eitzen (1974) 43 Cal.App.3d 253, 266-267; accord, People v. Swinney (1975) 46 Cal.App.3d 332. See also Uelmen, Making Sense out of the California Criminal Statute of Limitations, supra, 15 Pacific L.J. at pp. 71-72.) The warrant for defendant‘s arrest was issued by the justice court on April 30, 1982, and for any sodomy committed on or after January 1, 1979, the statute stopped running on that date.10
But to the extent that the evidence showed that an act of sodomy occurred in 1978, a time outside the period alleged in the information, the old statute must govern because it necessarily expired before the effective date of the new amendment. The statute of limitations for sodomy committed in 1978 expired three years later in 1981 and the amendment in question was not effective until January 1, 1982. The information was not filed until February 16, 1983, and hence any act of sodomy committed in 1978, more than three years before the filing of the information, was time barred. Thus whether the sodomy offense occurred in 1978 and the measurement is from its commission to the filing of the information and whether it occurred after January 1, 1979, but before April 30, 1979, and the measurement is from its commission to the date the warrant issued, the sodomy charge was still untimely. Because no date was given for the first incident described above, and because it could have occurred after January 1, 1978, the period when the
II.
Defendant next contends that he was denied due process because the jury was not instructed which acts the prosecution was relying upon to prove counts I (sodomy) and II (lewd and lascivious act upon Marla). There are two facets to this asserted error: First, was the prosecution required to elect the particular act it was relying upon to make good the allegation in the information? Second, when the jury was presented with more than one factual basis which might constitute the crime charged, should it have been instructed along the lines of CALJIC No. 17.01 that it had to unanimously agree upon the commission of the same act or acts constituting the crime?12
Emerging from this long line of cases is the so-called “either/or” rule: when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.513 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (See People v. Dunnahoo, supra, 152 Cal.App.3d at pp. 568-570,14 and cases cited therein including People v. Diedrich, supra, 31 Cal.3d at pp. 280-281.)15
We turn next to the sodomy charge. As we have noted earlier, count I alleged the commission of the crime of sodomy between January 1, 1979, and November 30, 1980. As we have recited, Marla testified to two incidents of sodomy or attempted sodomy. Defendant made no request for an election and the trial court on its own did not require the prosecution to select a specific act and date. Moreover, as to this crime, the jury was not instructed in the language of CALJIC No. 17.01, or similar language, that in order to convict defendant of sodomy it must unanimously agree on a particular act. We consequently hold that the prosecution‘s failure to elect between the two acts testified to by minor, and arguably forming the basis of the sodomy allegation in count I, and the court‘s failure to instruct, sua sponte, on the unanimity requirement with respect to a particular act constitute error. (People v. Diedrich, supra, 31 Cal.3d at p. 280; People v. Dunnahoo, supra, 152 Cal.App.3d at p. 570; People v. Madden (1981) 116 Cal.App.3d 212, at pp. 218-219.)
We note also that the “continuous course of conduct” exception to the “either/or” rule is not applicable here. This exception arises when the criminal acts are so closely connected that they form part of one and the same transaction, and thus one offense. (People v. Mota (1981) 115 Cal.App.3d 227, 233.)18 Thus, “[s]eparate acts may also result in but one crime if they occur within a relatively short time span . . . .” (People v. Epps, supra, 122 Cal.App.3d at p. 702, citation omitted.) In this case, there is absolutely no evidence concerning the timing of the two acts of sodomy, except that they allegedly occurred between 1978 and August 1979 and that one may have occurred during a camping trip in July 1979.
Does this error require reversal? The Chapman standard (whether the error was harmless beyond a reasonable doubt [Chapman v. California (1967) 386 U.S. 18, 24]), it has been held, must be applied when error is based on failure to instruct with CALJIC No. 17.01, or its equivalent. (People v. Metheney, supra, 154 Cal.App.3d at pp. 563-564; People v. Dunnahoo, supra, 152 Cal.App.3d at p. 574; People v. Deletto, supra, 147 Cal.App.3d at pp. 471-472.)
In Diedrich, the Supreme Court, after holding that the trial court‘s refusal to give CALJIC No. 17.01 constituted error, considered the prejudicial effect of the error: “The next question is whether the error was prejudicial. We feel bound to hold that it was. This is not a case where the jury‘s verdict implies that it did not believe the only defense offered. Diedrich‘s defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were ‘explained.’ Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial.” (People v. Diedrich, supra, 31 Cal.3d at pp. 282-283, italics added.) Under the Diedrich analysis, the test for harmless error is whether the case is one in which the jury‘s verdict necessarily implies that it did not believe the only defense offered. (See People v. Metheney, supra, 154 Cal.App.3d at p. 564; People v. Deletto, supra, 147 Cal.App.3d at p. 466.)
In the present case, we cannot say the error was harmless. Marla testified to two distinct and distinguishable acts: (1) The first act, for which no date was given, involved a sodomy or attempted sodomy that lasted several min-
Because some of the jurors may have believed the lack of opportunity defense to the second act, and other jurors not, and because some jurors may have believed there was penetration with respect to the first act of sodomy but not the second, and others not, we must conclude, there being more than one defense offered, that the jury verdict does not establish beyond a reasonable doubt that the jury rejected the same or only defense offered. (See People v. Epps, supra, 122 Cal.App.3d at p. 695 [failure to give CALJIC No. 17.01 required reversal where defendant, convicted of one count of child molesting (
III
Defendant next contends that in relation to counts I and II it was error to give CALJIC No. 4.71 and not No. 4.71.5.19 Since we have already concluded that the sodomy charge in count I must be reversed on instructional errors and other grounds, we address the contention only as to count II.
“Where a defendant is charged in a single count, and the evidence shows more than one criminal act of the kind alleged, it is error to give CALJIC No. 4.71 because it does not require the jury to focus on a specific criminal act and to convict a defendant of that act beyond a reasonable doubt. The appropriate instruction, CALJIC No. 4.71.5, plays the same role as CALJIC No. 17.01 to the extent it requires the jury to agree beyond a reasonable doubt defendant committed the same act. . . . CALJIC No. 4.71 hypothetically [would] allow[] the jury to reach a nonunanimous verdict.” (People v. Deletto, supra, 147 Cal.App.3d at pp. 474-475; citations omitted.)
Nevertheless, we conclude that the error was cured here as to count II because the court also instructed the jury in the language of CALJIC No. 17.01. CALJIC Nos. 4.71 and 17.01, read in conjunction, are not inconsistent: they instruct a jury confronted with an “on or about” allegation that while it need not find that the crime was committed on the precise date alleged (CALJIC No. 4.71), it must nonetheless unanimously agree that defendant committed the same act. (CALJIC No. 17.01.) Combined, these two instructions adequately instruct the jury on the point.20
IV
Defendant next contends he was denied effective assistance of counsel because his attorney failed to: (1) force the prosecution to elect among the multiple sex acts testified to by victim Marla and forming the basis of counts
In establishing ineffective assistance of counsel, the burden is on the defendant to show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, which failure resulted in the withdrawal of a potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 425.) This test has been expanded under People v. Fosselman (1983) 33 Cal.3d 572, 584, to add that a defendant may also establish incompetence of counsel by proving that counsel failed to perform with reasonable competence and that it is reasonably probable that a more favorable result would have been forthcoming in the absence of counsel‘s alleged failings.
At the outset, our review of trial counsel‘s competency is limited to the record before us because defendant has not filed a corresponding petition for habeas corpus which could admit evidence outside the record on this issue. (See People v. Pope, supra, 23 Cal.3d at pp. 426-427, fn. 17; People v. Apodaca (1978) 76 Cal.App.3d 479, 489, fn. 3.)
Failure to move for election.
The election issue involves only counts I and II. Since count I has already been reversed, we once again consider the issue only as to count II. To resolve the issue with respect to that count, we quote People v. Dunnahoo, supra, 152 Cal.App.3d at page 576, where the court addressed a nearly identical argument: “[S]ince Dunnahoo‘s only legitimate defense was one of credibility, failure of his counsel to force an election does not amount to ineffective counsel. The prosecution witnesses’ credibility was tested by thorough cross-examination. Pursuant to predetermined trial strategy, Dunnahoo took the stand and also contradicted their testimony. The jury was given the CALJIC No. 17.01 unanimity instruction. Thus, on this issue, his trial counsel acted in a manner expected of a reasonably competent attorney.”
Here, as in Dunnahoo, defendant‘s primary defense, at least on count II, was one of credibility. Victim Marla and her mother were cross-examined by defense counsel. Defendant took the stand and generally denied the accusations. Finally, the jury was instructed in the words of CALJIC No. 17.01. Since the posture of the case required the jury either
Admission of uncharged offenses.
There are three hurdles between defendant and a successful claim of ineffective assistance of counsel based on his counsel‘s failure to object to the admission of evidence of uncharged acts: (1) the offenses must be uncharged; (2) the evidence must be inadmissible; and (3) it must be reasonably probable a more favorable result would have resulted in the absence of that evidence. Defendant can clear only the first two hurdles.
First, an act is uncharged if it falls outside the accusatory pleading. This can happen when the act testified to either involves a different actus reus (say for robbery or arson) or occurred at a time different than the charged offense.21 In the instant case, acts not fixed in time by Marla arguably fell outside the information. These included, in relation to count I (sodomy), an act of sodomy which was not fixed within the time period alleged in count I and, in relation to count II (lewd and lascivious conduct), incidents when defendant rubbed Marla‘s thighs while driving in his truck, the numerous touchings, including sexual intercourse occurring over a period of time greater than that described in count II. Because the record reveals the admission of evidence of possibly uncharged acts, we turn to the question of their admissibility.
After People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1], we must conclude that the evidence of these arguably uncharged offenses was inadmissible.
In Tassell, the Supreme Court dealt with a defendant who was charged with forcible rape and forcible oral copulation on a single victim. Defendant admitted the intercourse and oral copulation but denied the use of force. The prosecution produced two other females who testified to having been forcibly raped by defendant and forced to orally copulate him on occasions prior to the charged crimes. A divided Supreme Court found error, albeit nonprejudicial, in the admission of the evidence concerning the two uncharged crimes. The reasoning of the court was that since neither defendant‘s identity nor his intent to have intercourse with the victim was in dispute, the evidence of the other crimes was irrelevant to any “contested issue” in the case. (Tassell, supra, 36 Cal.3d at p. 88, fn. 7 and p. 89.)22
Because neither identity nor intent was an issue in this case, we must also conclude, like Tassell, that evidence of any uncharged crimes was inadmissible. The defense here was not that Marla mistook defendant for another person or that the charged offenses, if believed by the jury, were committed with innocent intent. The evidence was relevant only to defendant‘s disposition to act and therefore clearly contrary to
Even granting that reasonably competent counsel would have objected to introduction of the evidence of the undated crimes on the ground that they
As to count II, alleging a lewd and lascivious act on Marla, she testified as to a specific act of touching and sexual intercourse occurring in defendant‘s tack room and within the period, June 1978 through November 1980, alleged in count II. This was a charged act. In light of defendant‘s credibility defense, nothing convinces us that the jury would have returned a more favorable verdict on count II, i.e., not guilty, in the absence of evidence of unspecified touching and sexual intercourse.
As to counts III and IV, alleging lewd and lascivious acts on Brandy W., we review the evidence against and for defendant. Brandy testified that approximately a week prior to December 22, 1978, defendant took her behind a barn on his property and stuck his hand down her pants and touched her vagina. Also, either two days before or after the above described incident, defendant drove Brandy down a private road and had sexual intercourse with her in his truck. Defendant offered evidence that the private road was impassable in the winter, which evidence was rebutted by the prosecution. The issue was essentially one of credibility, defendant‘s word against Brandy‘s, and the jury resolved it in Brandy‘s favor. We cannot say that in the absence of the contested evidence there is a reasonable probability that a result more favorable to defendant would have been reached.
Limiting instructions.
Defendant argues that assuming the prosecutor had elected the specific acts it was relying upon in counts I and II and could show a legitimate purpose for introducing one or more uncharged acts, defense counsel would have been under a duty to request appropriate limiting instructions depending on the prosecutor‘s theory. (For example, see CALJIC No. 2.50 (evidence of other offenses for particular limited purpose); No. 10.35 (evidence of lewd acts on same child to show intent); No. 10.54 (evidence of uncharged sodomy to show disposition or intent).)
Because we have concluded that the evidence of uncharged acts was subject to objection and was inadmissible, we need not address the further contention that defendant‘s counsel erred in not requesting limiting instructions. Limiting instructions would not have cured counsel‘s failure to object
V
Finally, defendant contends that the trial court erred in failing to instruct on lesser included offenses on its own motion. We need only discuss this contention with respect to counts II, III and IV. On those counts, we reject defendant‘s argument.
In People v. Wickersham (1982) 32 Cal.3d 307 [185 Cal.Rptr. 436, 650 P.2d 311], the Supreme Court discussed generally the obligation of trial courts to instruct, sua sponte, on lesser included offenses and defenses: “‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury‘s understanding of the case.’ That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. . . .’ In People v. Flannel (1979) 25 Cal.3d 668, 684-685, footnote 12 [160 Cal.Rptr. 84, 603 P.2d 1], the lead opinion stated that the court need only give the instruction if the accused proffers evidence sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded“’ that the particular facts underlying the instruction did exist. . . . [¶] Flannel did not directly discuss the standard to be utilized in determining when the court has a duty to instruct sua sponte on necessarily included offenses. However, logic would seem to require that the same standard should generally apply. The trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses.” (Id., at pp. 323-325; citations omitted.)
On count II, defendant urges that the trial court erred in failing to instruct, sua sponte, that attempted sodomy, sodomy, unlawful sexual intercourse and misdemeanor child molestation are lesser offenses included within the crime of lewd and lascivious conduct. (
It is true that, by statutory definition, one can violate
Misdemeanor child molestation (
Counts III and IV allege lewd and lascivious acts on Brandy W. in violation of
As to the “sexual intercourse count,” we have already noted that unlawful sexual intercourse (
On the “touching count,” defendant urges that the trial court erred in failing to instruct, sua sponte, on misdemeanor child molestation. Brandy testified that defendant escorted her behind the barn, reached his hand down her pants, and touched her vagina. Defendant simply denied doing the act. For the same reasons we rejected this contention as it related to count II, we again reject it on counts III and IV.
CONCLUSION
The judgment of conviction for sodomy in violation of
Regan, Acting P. J., concurred.
SIMS, J.—I concur in the majority opinion. I write separately to address in greater detail defendant‘s contention that the prosecutor had a sua sponte duty to elect, at the outset of trial, the act relied upon by the prosecution to obtain a conviction on each count pleaded in the information.
Where the information charges an offense, and where the evidence at trial shows more than one act of the kind charged within the timeframe pleaded in the information, either the election of a specific act by the prosecution,
However, the doctrine of prosecutorial election was not devised simply to avoid nonunanimous verdicts. As Dunnahoo itself acknowledges (id., at pp. 570-571), the doctrine was originally designed in part to insure that a defendant receives fair notice of the charges against him so he can prepare a defense. The doctrine of prosecutorial election for purposes of fair notice is traceable to two vintage cases decided only months apart: People v. Castro (1901) 133 Cal. 11 [65 P. 13] and People v. Williams (1901) 133 Cal. 165 [65 Ρ. 323]. Williams is the more illuminating of the decisions. It arose out of a prosecution for rape of a 13-year-old girl. (P. 167.) The doctrine of prosecutorial election can be addressed intelligently only by knowing what Williams was all about. To that end, I quote from the case at some length:
“But one other matter requires notice at our hands. That arises from an instruction given by the court, to the effect that if the jury found that defendant had had sexual intercourse with the prosecutrix at any time within three years before the finding of the indictment, she being under sixteen years of age, etc., they must find him guilty. The prosecutrix testified that she lived with the defendant for a period of four months, and on nearly every day during that time, and sometimes five or six times a day, they had sexual intercourse with each other. In addition to this sweeping general assertion, many alleged acts were specifically described, with circumstances of time, etc. Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them. The jury were not even told that they must all agree that some specifically described act had been performed. A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge, as to any one of these separate offenses. Even worse than that was possible. As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted. And
how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried? Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by the general designation, would be a judicial farce, if it were not something a great deal worse. That it was wrong, was held in the recent case of People v. Castro, [supra, 133 Cal. 11]. “. . . . . . . . . . . . . . . . . . . . . . .
“. . . A defendant on trial upon a criminal indictment has a right to demand that the charge against him shall be stated in ordinary and concise language, that he may know upon what specific charge he is to be tried, so that he may prepare his defense. Practically, that is not done in these few anomalous cases, where any number of separate offenses may be proven, although the defendant is being tried for the commission of only one. Two cases upon this point are cited, in each of which a rule is declared, but the rules differ. In People v. Flaherty, 162 N.Y. 540, it is said: ‘The indictment alleges acts constituting but one crime, and while the mistake as to the date will not prevent the prosecution from proving the crime charged in the indictment, the indictment will be deemed to cover the offense attempted to be proved nearest in point of time to the date of the indictment.’ In State v. Hilberg, 61 Pac. Rep. 215 (Utah), it was said, after noticing that the prosecution could have proved any one act committed, ‘When evidence was introduced, tending directly to the proof of one act, and for the purpose of securing a conviction upon it, from that moment that particular act became the act charged.’ This rule is uncertain, and unfair to the defendant, because of the qualifying clause, ‘for the purpose of securing a conviction upon it.’ I think the prosecuting officer, when he commences the trial of a case of this class, where he is at liberty to prove one of several different offenses under the indictment, should at least as early as the commencement of the trial, inform the defense upon proof of what specific offense he intends to rely, and if he does not, the first evidence which would tend in any degree to prove an offense shall be deemed a selection, and unless that precise offense is proven, the defendant is entitled to an acquittal. Even this would leave a defendant in such cases at a disadvantge [sic], but he ought not be tried under less favorable circumstances.” (People v. Williams, supra, 133 Cal. at pp. 167-169, italics in original.)
Williams tenders a virtual bouillabaisse of fair notice concerns. I think it crucial at the outset to extract from this soup some ingredients that serve no purpose other than confusion. Thus, for example, Williams mentions “the general evidence of continuous crime” and “a charge . . . indefinite as to circumstance of time or place,” and then asks rhetorically, “And how could he defend when he was not informed as to what particular offense,
This allusion to the vagueness of the evidence can easily lead to the conclusion a defendant has a right to notice of the specific time or place an offense occurred. That is obviously not the law. The prosecution has a duty to plead that an offense was committed within the period of an applicable statute of limitations. (See People v. Chadd (1981) 28 Cal.3d 739, 756-757 [170 Cal.Rptr. 798, 621 P.2d 837]; People v. Witt (1975) 53 Cal.App.3d 154, 162 [125 Cal.Rptr. 653].) Beyond that, whatever may be the prosecution‘s duty to provide notice of a charged offense to a defendant, the prosecution clearly has no duty to provide more explicit notice than human nature and science permit. A contrary conclusion would lead to the absurd result that those defendants who are most clever about concealing the precise time or place of their crimes, and who are therefore the most dangerous, would avoid prosecution.
Thus, for example, if the dismembered and decomposed body of defendant‘s wife is exhumed from its basement grave, and if the authorities are able to place the time of death only within a span of a year or two, the defendant cannot avoid prosecution by contending the vagueness of the charge may well prohibit him from pursuing an alibi defense based on the theory he was out of town during certain days or weeks during the years when his wife met her demise. Indeed, I am unaware of any American case in which a contention of this sort has been advanced. Similarly, in cases of sexual child abuse, a defendant has no right to notice of the time or place of a sexual act that is more explicit than the recollection of the child is capable of providing.1
A second concern of Williams is that, regardless of the vagueness of the time or place of criminal acts shown by the evidence, the defendant must receive reasonable advance notice of the acts to be relied upon by the prosecution to prove the offense. This concern makes sense. Unless a defendant knows the prosecution will try to hold him criminally responsible by proving he committed certain acts, the defendant cannot know whether he has a defense to any of those acts.
In my view, modern procedures in criminal cases have eroded if not eliminated Williams’ concerns about fair notice in the indictment process. When Williams was decided in 1901, a defendant who was indicted was not
In Hawkins, our Supreme Court held, on equal protection grounds, that a defendant must be afforded a postindictment preliminary hearing, including rights of cross-examination by defense counsel. (Id., at p. 593.) Itemizing the virtues of such a preliminary hearing, the court said, “[S]uch a hearing will assuredly provide the defense with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial.” (Id., at p. 588, italics added.)
It is clear that in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend. Nothing more need be said in support of this proposition than to point to several well-established rules of law. The first is that, under “simplified” California pleading, the circumstances of the offense need not be pleaded. (See generally Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, §§ 186-192, pp. 175-182.) “‘Section 952 . . . , which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended [in 1927], declares that it shall be sufficient if it be “in any words sufficient to give the accused notice of the offense of which he is accused.” There, in a nutshell, is stated the principle of our present simplified form of pleading a criminal offense—the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment or information is founded.‘” (People v. Marshall (1957) 48 Cal.2d 394, 399, fn. 5 [309 P.2d 456], quoting People v. Beesly (1931) 119 Cal.App. 82, 85-86 [6 P.2d 114], followed in
Another relevant rule is that an information cannot charge offenses not shown by the evidence at the preliminary examination. (See Jones v. Superior Court (1971) 4 Cal.3d 660, 664-668 [94 Cal.Rptr. 289, 483 P.2d 1241].)
Other rules illustrate the facility with which an information may be amended. Thus, ”
These rules make it clear that an information plays a limited but important role: it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant.
In light of the notice function played by the preliminary hearing transcript, a prosecutorial election is unnecessary to advise defendant of the criminal acts he must defend against. When Williams asks “how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried?” (People v. Williams, supra, 133 Cal. at p. 168), the modern answer is that, at a minimum, a defendant must be prepared to defend against all offenses of the
Despite its arguable anachronism, Williams remains good law. (See People v. Diedrich (1982) 31 Cal.3d 263, 281 [182 Cal.Rptr. 354, 643 P.2d 971].) It is not for this court to abolish the doctrine of prosecutorial election. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) Nonetheless, Williams is silent on the issue tendered here, i.e., whether the prosecutor must elect in each case (and/or whether the court sua sponte must force an election), or whether an election by the prosecution is required only when requested by the defendant.
I believe the better rule is to require an election only in the event of a defendant‘s request.4 Because the preliminary hearing transcript puts a defendant on notice, I agree with the majority that multiple acts described therein are all “charged offenses” within a single count of an information provided the evidence at the preliminary hearing shows the acts meet the definition of the charged offense and were committed within the timeframe alleged in the information. (Maj. opn., ante, p. 859, fn. 21.) Since the various acts are all charged offenses, they may be proved at trial without concern for limitations on proof of noncharged offenses recently summarized in People v. Tassell (1984) 36 Cal.3d 77, at pages 83-89 [201 Cal.Rptr. 567, 679 P.2d 1]. However, once the prosecutor elects a single act as the charged offense, the other acts suddenly become noncharged offenses subject to Tassell‘s rules of exclusion from evidence.
I suggest that, as a practical matter, the effect of a rule requiring a mandatory election would simply be that prosecutors would routinely charge, as a separate count in the original complaint, each criminal act expected to be shown by the evidence at the preliminary hearing in order to avoid Tassell problems. The information would then plead, as separate counts, all acts sustained by the magistrate. The ironic net result would be an unfortunate limitation on prosecutorial charging discretion.
Thus, for example, we recently pointed out that the Penal Code‘s prohibitions on sexual conduct with minors apply to “a broad spectrum of con-
I think it unwise to promulgate a rule which, in its practical application, would encourage prosecutors to abandon their charging discretion and to seek a conviction for each act committed by a defendant regardless of circumstances of culpability. In its practical effect, such a rule would mean that, in cases where a child testifies an adult lewdly touched the child “every day” during a period of months or years (as is not uncommon in cases reviewed by this court), a defendant could be convicted of hundreds of counts of violation of
I am frankly uncertain how People v. Dunnahoo, supra, resolved the election problem. It is not clear to me whether Dunnahoo suggests (a) that a defendant must request an election in all cases; or (b) that a defendant must request an election except when defendant proffers a defense of alibi or mistaken identity, in which event an election is mandatory; or (c) that an election, with or without request by a defendant, is available only where such defenses are proffered.
My view is that, because of notice provided by the preliminary hearing transcript, an election is not required by due process and is therefore not required to be made sua sponte in any case, regardless of defenses. However, assuming Williams and Castro require a trial court to honor a request for an election, I fail to see why a defendant should have to tender alibi or mistaken identity defenses to force an election. If the election doctrine has any vitality at all (and we must assume it does), it could serve to focus the jury‘s attention on a single act. Theoretically, the prosecutor‘s election would allow the defendant to pursue defenses to the elected act that might
I emphasize that the argument at this point is largely theoretical. In the real world, a request for an election by the prosecutor will often be greeted with a cross-motion by the prosecutor to amend the information to charge additional counts. But whether, and in what circumstances, a defendant may wish to run that risk is hard to ascertain in the abstract. Suffice it to say that, in the absence of higher authority to the contrary, I see no reason to require a sua sponte prosecutorial election. At the same time, I see no reason to limit defendant‘s request for an election to cases in which he pursues alibi or mistaken identity defenses.
Notes
As we have already noted in the margin, effective January 1, 1980,