*1 Dist., No. 23151. Second Div. Two. Mar. 1974.] [Crim. PEOPLE,
THE Plaintiff Respondent,
JOAQUIN MENDOZA, Defendant and Appellant.
Counsel Defender, Shabo, Richard S. Public Oberstein Harold E. Alan C. Buckley, Stein, Defenders, and Martin Public for Defendant and Deputy Appellant. General, Hinz, Jr., R. Evelle J. Edward A. and Jack Younger, Attorney General, Winkler, Chief William E. James and S. Assistant Attorneys General, Moore, Clark Assistant Norman H. Sokolow and Attorneys II, General, Lawrence P. Scherb Plaintiff and Attorneys Deputy Respondent.
Opinion (order FLEMING, J. Mendoza the appeals Joaquin granting judgment a a lewd act after a convicted him of committing upon probation) Code, child under 14 of 288.) (Pen. § years age.
Facts he, then 13 Tad testified that February S. on the afternoon of 1 old, and his friend at an years Jim M. were delivering newspapers apart- on ment house on Tamarand Tad saw Mendoza Avenue in Hollywood. the house stairs Mendoza bought and asked him to a buy apartment paper. Jim told Tad he invited Tad and one and would like to subscribe. He then and out a Play- into his where he the boys candy apartment, gave pointed the wall. As Tad centerfold of a nude on boy girl magazine photograph Tad, held him by Jim were the Mendoza and leaving apartment, stopped shoulder, he held the and mumbled in his ear. Then Tad’s something Men- hands the As Tad away cheeks in his and kissed him on pulled lips. he route. Tad said doza asked him to return when he finished his When back, between Tad’s and legs grabbed not come Mendoza reached could left the house. his clothes. Tad then apartment at his through genitals Issues As conviction, for the grounds (1) reversal of Mendoza claims erroneous act, admission of evidence a (2) of similar instruction on prior misleading the crime, acts the undue his specific (3) limitation on constituting argu- ment to the (4) and jury, inflammatory argument jury by prosecutor.
Discussion 1. Prior Act. Similar similar to that
The heard evidence a act Mendoza prior as the David F. that he was almost 13 old years crime. testified charged on 21 June 1969. That afternoon Mendoza him MacArthur approached Los Park in and invited to his for him Angeles apartment potato chips. Inside the Mendoza David foldouts of showed several apartment Playboy nude women on the wall. started feel David’s genitals Mendoza then to resisted, and asked him to commit various lewd acts. When David Men- doza said to As they should return left the Men- they park. apartment, doza his on arm around David and kissed him the cheek. Several con- put tentions cluster around admission of David’s testimony.
First, contends the of evidence presentation prior Mendoza have and the court should granted him David surprised offense against three to defense. days” of “two or for continuance prepare his motion Mendoza from the to resulting find no abuse of discretion or We prejudice did decide to not produce denial of motion. Although before the commencement of a incident until the day evidence prior trial, testimony. four for Mendoza had David’s days prepare to cross-examine to hear testimony allowed David’s court Mendoza him had available Mendoza testimony. time the heard the prior of David’s and victim charge, his use in cross-examination police reports *6 who David’s investigated two officers had and he called as witnesses police a continuance why the court no reason Mendoza offered specific charge. he could not should Although of two or three have been days granted. David’s Mendoza of officers charge, locate one who investigated police two or three would have been located in more did not show that the officer would have contributed substantially or that the officer’s testimony days Mason, (Pen. Code, 1050; People v. 183 see to his defense. Cal.App.2d § a of an 168, 649].) showing “In lack of 172-173 Cal.Rptr. [6 defendant, his a denial of motion or of abuse of discretion prejudice result in a reversal of conviction.” cannot judgment for a continuance 425, Laursen, 192, 501 P.2d (People v. 8 204 Cal.Rptr. Cal.3d [104 1145].)
723 Second, Mendoza contends the denied him a fair trial prosecutor and victim to David’s that suppressing police reports relating charge were favorable to the defense. The record discloses no intentional suppres sion of evidence: the stated to the court she could not locate Later, on David’s and she believed the reports did not exist. charge reports Mendoza’s succeeded in Mendoza investigator Since locating reports. had these available to him reports potential impeachment purposes, since he failed to show that earlier disclosure of the would have reports evidence, led to other material and since the related to im only reports of á issue, witness who testified peachment on a we conclude subsidiary conduct could not have prosecutor’s (People been v. prejudicial. Cohen, 298, 12 324 612].) Cal.App.3d [90 Cal.Rptr.
Third, Mendoza contends the court should have excluded David’s because it testimony criminal This merely contention proved disposition. lacks merit. Evidence of another sex offense is admissible to show a common scheme time, or if the offense is similar to plan proximate the offense and committed with charged, similar to the persons prosecuting (People witness. Kelley, 232, 363, v. 66 Cal.2d 243 424 Cal.Rptr. [57 Cramer, People P.2d v. 67 Cal.2d 129 429 Cal.Rptr. [60 lies Admissibility within the sound discretion of the trial court Wells, (People 460]; People Cal.App.3d Cal.Rptr. [91 Armstrong, 668]), Cal.App.2d and we see no Cal.Rptr. [79 abuse of discretion here. act is not too remote in time prior (see Thoman, People v. Cal.App.3d 746] [of before]; Pierce, fense three years People v. Cal. Rptr. conduct back 257] seven and it is going years]), [course strikingly similar in circumstance: in each instance the afternoon Mendoza during victim, lured his old, about 13 him boy to his offered years apartment, food, showed him of nude women from photographs Playboy magazine, touched resisted, the boy’s desisted genitals, when the his boy arm put him, around and kissed the as left the boy they apartment.
Fourth, of David’s assuming admissibility Mendoza testimony, contends he should have been allowed to with a testimony impeach officer’s police David’s opinion with evidence that no crim veracity inal or arrest had resulted complaint from David’s charge.
We find no error in the trial court’s A officer who rulings. investi police David’s would have testified gated that in his David lied opinion *7 about Mendoza. David, This officer never talked to but arrived at his opinion cases, on the basis of his in similar on notes made other experience by officers, and on the fact that David nine before delayed days his bringing
724 This an interview. then did not to requests and respond police
charge (People credibility. did witness on David’s officer not as a qualify competent 896].) neither knew 811, He Bugg, 204 813 Cal.Rptr. v. Cal.App.2d [22 Harris, 130]) 863, nor (People v. 873 Cal.Rptr. 270 [76 David Cal.App.2d and veracity for honesty David’s knowledge reputation professed 225, Cal. 232-233 Paisley, 214 (People [29 v. community. Cal.App.2d 307].) Rptr. Mendoza, against of David’s charge reference to the
With disposition are not which you with instructed the that “for reasons the trial court 1969 alleged there is relating concern no yourselves, prosecution Jenkins, v. (People 3 covered the acts.” This sufficiently point instruction 525]) 529, and avoided diverting 534-535 Cal.Rptr. [83 Code, 352.) (Evid. trial’s focus from its issues. § principal Fifth, Mendoza contends the court erred in the jury instructing act could be of the "evidence” prior proved “preponderance rather “beyond than doubt.” concedes the cases reasonable He California Lisenba, (see 403, are People him v. 14 Cal.2d 429-432 [94 569]), but he In Winship, re U.S. argues L.Ed.2d [25 1068], S.Ct. Winship
725 to, the lust or or passions intent of gratifying arousing, appealing specific child, crime.” of a of such guilty sexual desires of such or or person may 10.30.) court then instructed: (CALJIC defendant] No. “[The he doubt that shows reasonable beyond be found if guilty proof acts, the defendant in order to find one or more of such but committed any or acts. the same act that he committed all the must guilty, jurors agree so agreed act or acts committed It is not necessary particular 17.01.) (CALJIC No. be stated in verdict.” upon “it did that latter instruction on the ground Mendoza challenges sufficient to consti- would be not which acts shown evidence specify tute the crime charged.” be read in context. is unmeritorious. Instructions must
The contention Mohammed, 429, 963].) The Cal. 431 P. (People phrase v. 189 [208 immediately refers back to the one or more of such acts” obviously “any instruction, that could defines the set of acts carefully which preceding that the jury constitute the crime must accepted We charged. presume CMAG, Inc., Inc. v. (Sill Properties, of the instructions. meaning plain 42, 155].) 53 219 Cal.Rptr. Cal.App.2d [33 Argument Jury.
3. Mendoza’s have allowed him to contends the trial court should Mendoza cases which about unrelated two clippings read to jury newspaper men. accusations innocent are to have fabricated children reported be based must summation to Counsel’s We disagree. Evans, v. (People or known the evidence judicially. facts shown upon to non refer the 242, 636].) may Counsel 39 Cal.2d P.2d [246 drawn from to illustrations or matters of common evidentiary knowledge, Love, 720, 2d 56 Cal. v. (People literature or history, common experience, on the not dwell 33]), par but he may 366 P.2d Cal.Rptr. [16 here The court unrelated, cases. facts of unsubstantiated ticular for the common to draw on experience defense counsel properly permitted in accusations against sometimes fabricate children notion general license defense counsel denied but the court nocent properly persons, crimes, material hearsay about unrelated specific read newspaper clippings Polite, v. (People facts. with irrelevant confuse the only which could Radovich, Cal. 845]; v. People Cal.Rptr. Cal.App.2d [45 Hawthorne, 860]; People Cal.App. 78-79 App. [13 Woodson, 15-17 People but see P. *9 Argument 4. Jury. Prosecutor's to court, however,
The trial failed to exercise similar control over the to the which led numerous erroneous prosecutor’s argument to jury, and statements. inflammatory
First, California, the violated the v. 380 U.S. prosecutor spirit Griffin comment 85 S.Ct. with a veiled on 1229], L.Ed.2d thinly [14 Mendoza’s failure to She that is a serious testify. argued jury “[t]his offense; should it you I give Since olden great, great thought. days, guess it is stand, from the time when the defendant was not capable taking know, he you couldn’t be a witness in those there is a days, cautionary made; that instruction to ‘The says you, hard to defend easily ” against.’ The court this inadvertently error when it instructed compounded “In jury: whether or not to the defendant deciding testify, choose may upon to on the state rely failure, of the evidence and if any, of the him, essential People prove every of the and element no charge against lack of on testimony defendant’s will a failure of part supply proof so as to People support on such essen finding him any itself tial (Former element.” 2.61, CALJIC No. added.) italics This instruction was because it improper indirectly could consider implied Mendoza’s failure to as evidence to testify an essential element of prove (People Vargas, offense. 9 Cal.3d Cal.Rptr. [108 959]; Townsend, People Cal. 923-925 Cal.App.3d Williams, People v. Rptr. 45-46 Second, drew inferences from unjustifiable repeatedly prosecutor and dwelt not reflected in evidence Mendoza’s conduct on suppositions counsel.) (See before the our discussion above on argument jury. previous A few examples: whom, little, small, It is mild some of the very people,
“[Prosecutor]: care, ulti- rather than even who maybe being prosecuted, go psychiatric molest, attack, and kill friends even their mately sexually granddaughters, them, who to the house to see or the child is found in Griffith Park. come more, are many These are all the time. . . . There things happen them, more all read that say, ‘Hey, you articles have you newspapers; know, think we this He looked kind of meek.’ didn’t was too guy dangerous. is no evidence as And we don’t know how Mr. Mendoza is. There fragile know; is, didn’t to how he but he looked sort of meek. We fragile really realize, this is after death and worse that leaves injury we didn’t really these kids.” on
Third, informed the misstated the law. She incorrectly case, Code, that a “child molestation that is of the Penal requires little evidence.” That neither more nor less evidence very charge requires other. than any
Fourth, Men- “to take Mr. in summation the asked *10 prosecutor determining doza the streets.” California law the gives off responsibility Adult The the and the Authority. in criminal cases to judge punishment the is to the determination of defendant’s guilt limited jury’s responsibility or of the him. innocence against case, but needlessly a she jury
The presented strong prosecutor case with even and an stronger passion prejudice. coupled appeal errone think irrelevancies have the and may misstatements foregoing We defendant, we the the and are not ously jury persuaded against prejudiced had errors the cumulative these reasonable doubt that impact a beyond California, verdict. (Chapman no effect in about the guilty bringing 824, A.L.R.3d U.S. L.Ed.2d S.Ct. Williams,
People v. (order The is reversed. probation) judgment granting Roth, J.,P. concurred. concludes, I correctly, and think
COMPTON, J. The majority I dissent. Thus, the if was one. even that the case the defendant a strong are considered the instruction single statements of and jury concede, needlessly error, opinion to be I do not majority which point in which a day have to reach yet erodes the harmless error rule. We cases that the volume of record can be and with totally error-free expected Constitution, courts, the of California are our wisdom presently clogging VI, efficacy its is vital. article section and apparent especially Here is a case in which the evidence which is completely unchallenged, discloses that the twice defendant has A boys. molested of 12 young citizens has on this unanimously defendant’s Yet because of agreed guilt. there be reversal must still another trial.
Inherent in the is the that the majority opinion assumption jurors this were so in case as to be irresponsible unintelligent away by swept what the considers to be remarks majority inflammatory by prosecutor.
I am a firm believer in the and abhor what I jury system perceive be a courts to treat as tendency jurors lacking intelligence persons criminal or common sense. with in the trial of cases Anyone any experience knows that duties their and are not jurors conscientiously perform prone
to convict individuals of crime on the basis of evidence be- flimsy simply cause of statements made I submit attorney. prosecuting influence on or of statements of supposed jurors attorneys newspaper pub- or the licity of other are to be insu- myriad of which jurors sought things lated exists more in the than in reality. imagination judges here majority opinion attributes to apparently a consid- erable when sophistication they conclude that it could have been misled insertion of the two words itself” in “by an instruction which over- all very states the law forcefully concerning defendant’s not to right testify.
A that attentive to the instructions and that could cer- analytical *11 be tainly to abide the additional expected by instructions which were they not to consider given as evidence statement made counsel and any to by base their verdict on the evidence received. solely
I see about the remarks the which particularly inflammatory nothing pro- secutor made to the All of her statements were correct. After jury. factually all the is an advocate and as is prosecutor such not confined in- argument sterile, to a lack-luster recital of the evidence.
The
reference
the
a
as this
to
instruction that
such
prosecutor’s
charge
is
made and
easily
once made difficult to
was accurate and it
disprove
takes
strained
this
a
of the rule of
very
to view
as
circumvention
reasoning
1229)].
U.S.
L.Ed.2d
(14
S.Ct.
Griffin California
The
at least
out of context in
majority
statement
quotes
prosecutor’s
True,
one instance.
that a “child molesta-
she did commence a statement
case,
Code,
tion
that is
little evidence.”
very
288 of the Penal
requires
statement, however,
That
coun-
from defense
was
by objection
interrupted
sel and
was not
of
prosecutor
argument
completed. Upon resumption
offense were
of the
on her remarks to the effect that the elements
expanded
to
few
child was
in number and
of the
required
that
little touching
very
were a far
from
cry
constitute
true and
the offense. These statements were
wit, that less evidence
to
on them by majority,
interpretation placed
criminal charge.
was
in
other
any
this
than
convict in
offense
required
The
exhortation to the
“to take Mr. Mendoza off the
prosecutor’s
streets” was
more
a
a
than
to render
verdict of
nothing
plea
The
was instructed that the
guilty.
subject
penalty
punishment
was not to be considered
them and it is to be
that
fol-
by
they
presumed
most,
all,
lowed that instruction. As a
matter I
if not
practical
suspect
feel that a
for a
such as this will result in
jurors
verdict
guilty
by
such a
it
difficult to see how
statement
incarceration. I find
very
the evidence.
influence the
view of
could
jury’s
prosecutor
technically
instruction was found
the one
Even though
questioned
People Vargas,
959], by Court’s lead I would further follow the Supreme doubt. that error harmless reasonable beyond any finding attor- courts to reprimand function of the It is not appellate proper for such offend our sensibilities. penalty statements that neys might but That not public. pen- here is paid reprimand not to a risk of this degenerate going unpunished the creation of alty function is to mis- Our guard the costs of retrial. proper mention would occurred here. I affirm No such miscarriage carriage justice. the judgment. denied Court was for a hearing by Supreme petition
Respondent’s
1, 1974.
May
a different result.
notes
We
compels
disagree.
merely
rule that
of a criminal
a reasonable
longstanding
beyond
proof
doubt is
(397 U.S. at
L.Ed.2d at
constitutionally required
p.
p.
[25
374]) and
that standard of
applies
proof
adjudicative stage
juve
nile
when the
with an act which would
proceedings
juvenile
charged
a crime if committed
an
(397
adult.
U.S. at
L.Ed.
p.
[25
constitute
at
2d
of the California rule on
crimes
p.
logic
of other
proof
still
facts
are
another offense
facts
applies:
regarding
evidentiary
simply
to be considered
with other evidence in the case on the
along
question
intent;
or
entertain some reason
knowledge,
although
jury may
plan,
able
doubt as to
of the other offense or of
items of
proof
particular
evidence, it is sufficient if
are
a reasonable
beyond
convinced
doubt of
they
Lisenba,
(People
supra,
the ultimate fact of
or intent.
v.
knowledge, plan,
McClellan,
402>;
People
Cal.2d
v.
Cal.2d
871];
Lego
Twomey,
see
404 U.S.
L.Ed.2d
457 P.2d
also
487 [30
618, 626,