PEOPLE v. SCOTT

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District Court of Appeal, Second District, Division 1, California.

PEOPLE v. SCOTT.

Cr. 3763.

Decided: February 09, 1944

Fred A. Shaeffer, of Santa Maria, for appellant. Robert W. Kenny, Atty. Gen., David K. Lever, Deputy Atty. Gen., Lawrence M. Parma, Dist. Atty., of Santa Barbara, and Thomas P. Weldon, Deputy Dist. Atty., of Santa Maria, for respondent.

In an information filed by the district attorney of the County of Santa Barbara defendant was accused in Counts I, II and III of the crime of rape based on a single act of intercourse committed without the consent and against the will of a sixteen–year old girl. Count I charged statutory rape upon a female under the age of consent, contrary to the provisions of subdivision 1 of section 261 of the Penal Code. Count II, after alleging that it was “for a further and separate cause of action”, but which in reality and for all intents and purposes was but a separate statement of the same offense, alleged that the crime of rape was accomplished by force and violence, in violation of the provisions of subdivision 3 of the section. Count III, which was also in reality a separate statement of the same offense though it was pleaded as “a further and separate cause of action”, charged that the rape was accomplished by threats of great bodily and immediate harm to the prosecutrix, by reason of which she was prevented from resisting, and which offense was in violation of subdivision 4 of the section.

In Count IV of the information the defendant was charged with a violation of section 702 of the Welfare and Institutions Code of California and which charge was pleaded as “connected together in the commission of the crimes set forth in Counts I, II and III”.

By Count V the defendant was charged with a violation of section 13 of the Dangerous Weapons' Control Law of 1923, as amended (Stats.1923, ch. 339, p. 702, Deering's General Laws 1937, Act 1970, p. 999), in that he did wilfully and unlawfully alter, remove and obliterate certain marks of identification upon an automatic pistol in his possession.

Following the entry of not guilty pleas to all counts of the information, the cause proceeded to trial before a jury resulting in the conviction of defendant on all five counts. As to the charges of rape contained in Counts I, II and III, a separate judgment was pronounced and entered on each count, sentencing the defendant thereon to the state prison at San Quentin “for the term prescribed by law”, the sentences to run concurrently. As to Count I, wherein the punishment prescribed by section 264 of the Penal Code is either by imprisonment in the state prison or county jail as the jury may determine and recommend, it is to be noted that pursuant to the provisions of said section the jury in the instant case, in the exercise of the discretion reposed in them, fixed the punishment as imprisonment in the state prison. From the judgments of conviction on all five counts and from the order denying his motion for a new trial, defendant prosecutes this appeal.

In summarizing the evidence we deem it unnecessary to here set forth in detail the testimony in regard to the charges of rape embodied in Counts I, II and III. This for the reason that on both the direct and cross–examination of the defendant he admitted having the act of sexual intercourse with the prosecutrix as charged against him; that she was not his wife, and there was abundant proof that the complainant was of the age of sixteen years; all of which practically demonstrated defendant's guilt as to Count I. Concerning Counts II and III, suffice it to say that an examination of the record reveals sufficient evidence to support defendant's conviction thereon, consisting as it does of ample testimony that the assault was accomplished by force and threats of great and immediate bodily harm to the victim thereof. By the same character of evidence defendant's guilt was legally established upon the charge of violating section 702 of the Welfare and Institutions Code, St.1937, p. 1033, as charged in Count IV. As to Count V the evidence establishes the fact that defendant had in his possession and exhibited to the complainant the gun which formed the basis of the charge therein contained. That the identification marks upon the weapon were altered or changed by someone, in violation of the statute, was also established by competent evidence.

After a jury was empaneled, but before they were sworn to try the cause, defendant asked permission to withdraw his pleas of not guilty as to Counts II, IV and V for the purpose of making certain motions. The record is not altogether clear as to whether the court granted the motion to withdraw the not guilty pleas but it does appear that certain motions were made and considered by the court, to which we will now give consideration in view of appellant's contention that the court's adverse rulings thereon require a reversal.

As to Count II the defendant moved to set aside the charge therein contained on the ground that the defendant had not been legally committed by a magistrate. Subdivision 1, section 995, Penal Code. In support of this motion defendant offered the transcript of the testimony taken at the preliminary examination. After reading the same the court denied the motion. With this ruling we cannot interfere as the transcript of the preliminary examination is not before us, not having been brought up on appeal. Without the aid of such transcript we cannot assume error in the ruling of the court based upon a reading thereof.

The motion to dismiss Count IV was grounded on the claim that the superior court, when not sitting as a juvenile court, is without jurisdiction to try a defendant accused of violating section 702 of the Welfare and Institutions Code unless such prosecution was initiated in the juvenile court and transferred to the superior court sitting in the exercise of its general jurisdiction. That the juvenile court has original jurisdiction over all misdemeanors defined by section 702 of the Welfare and Institutions Code cannot be denied. The legislature having conferred upon the juvenile court original jurisdiction of all misdemeanors mentioned in the last named code section, that court has exclusive jurisdiction as to such misdemeanors, and as to them the superior court is without jurisdiction. In re Gamo, 122 Cal.App. 725, 726, 10 P.2d 770. However, it is equally well established that while the juvenile court has jurisdiction in such a case to impose a penalty where the defendant enters a guilty plea, yet when a defendant, as was done in the case at bar, enters a plea of not guilty, the jurisdiction is in the superior court. People v. Superior Court of San Bernardino County, 104 Cal.App. 276, 285 P. 871; In re Gamo, supra; Section 702, Welfare and Institutions Code. Therefore, the juvenile court had jurisdiction to conduct the proceedings as to the offense charged in Count IV herein up to the time defendant entered his plea of “not guilty”, and thereafter the superior court had jurisdiction to try and sentence the defendant upon his conviction. There was filed in this case a stipulation entered into by both appellant and respondent wherein it is recited that there are two superior court judges in the County of Santa Barbara; that the departments of said court presided over by both judges have been designated as a juvenile court; and “that all proceedings in said case were heard before either of said two judges; that defendant's plea was entered before Judge Wagner and all other proceedings were before Judge Westwick”. The record before us does not show where the proceedings as to Count IV were initiated, before what court the original complaint, if any, was filed, the preliminary examination held; whether the district attorney initiated such prosecution pursuant to the provisions of section 809 of the Penal Code, or whether any proceedings whatsoever were had prior to the filing of the information and the entry of a not guilty plea. If appellant intended to rely upon error, because the complaint was not filed in the proper court or because he was not properly held to answer for the offense charged, he should have made the proceedings upon which he based such claim a part of the record on appeal. The regularity of such proceedings as were had will be presumed, in the absence of a showing to the contrary. People v. Sanchez, 21 Cal.2d 466, 467, 469, 132 P.2d 810. We must, therefore, assume that the procedure was regular up to the time the defendant entered his plea of not guilty, and by reason of what we have heretofore said, it is manifest that the proceedings which attended defendant's trial, conviction and sentence in the superior court were legal and regular. This is at once apparent when, according to the stipulation, the department of the superior court in which the defendant entered his plea, as well as the department in which he was tried, operated under the law, as both a juvenile and superior court.

Error is next asserted because of the denial of defendant's motion to dismiss Count V of the information. In view of the conclusion at which we have arrived and will later discuss, that the conviction under Count V must be reversed, it becomes unnecessary to here give consideration to the claimed erroneous ruling on such motion.

We come now to a consideration of appellant's claim that he cannot be legally convicted on three separate counts of rape when the evidence shows that such counts were predicated upon a single act of intercourse. It is now definitely established as the law in this state that under section 261 of the Penal Code but one punishable offense of rape results from a single act of intercourse, notwithstanding that the single act may be accomplished under more than one of the conditions and circumstances enumerated in the various subdivisions of the code section. People v. Craig, 17 Cal.2d 453, 455, 110 P.2d 403, 404. In the cited case it was held: “These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act.” The reasons for the rule just announced are presented with exceptional clarity in a well–considered opinion prepared by Mr. Chief Justice Gibson in the case from which we have just quoted. The same case furnishes authority for this court to so modify the separate judgments pronounced in Counts I, II and III herein by consolidating them into a single judgment. By so doing, no possible disadvantage or detriment will ensue to the defendant when the time arrives for the State Board of Prison Terms and Paroles to fix his definite term of imprisonment. This we shall do in remanding the case to the trial court.

Finally, appellant challenges the constitutionality of certain provisions of section 13 of the aforesaid Dangerous Weapons' Control Act of 1923, as amended, which formed the gravamen of Count V.

Section 13 of the act reads as follows: “No person shall change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any pistol or revolver. Possession of any such firearm upon which the same shall have been changed, altered, removed, or obliterated, shall be presumptive evidence that such possessor has changed, altered, removed, or obliterated the same.” (Emphasis added)

Pursuant to the aforesaid provisions the court instructed the jury that if they found from the evidence that the defendant was in possession of a firearm upon which the enumerated marks of identification were altered, removed or obliterated, such possession would constitute presumptive evidence that the defendant had so changed, altered, removed or obliterated such identifying marks.

The constitutionality of that portion of the section which makes possession of a firearm upon which marks of identification have been tampered with, presumptive evidence that such possessor so changed or altered the identifying marks, is challenged by appellant upon the ground that being an essential element of the offense charged––a part of the corpus delicti––the fact that the defendant made the changes or alterations on the firearm must be proved by the prosecution, and that the burden of such proof cannot be shifted to the defendant by force of a legislative declaration that because of his possession of the firearm the defendant is presumptively guilty of the crime of making alterations or changes thereon.

The vice of the challenged portion of the statute, as we view it, lies in the fact that it leaves the jury free to act upon the presumption alone, once the specified fact of possession is proved, unless the defendant comes forward with opposing evidence. Under the American philosophy of jurisprudence and constitutional guaranties, is this not enough of itself to vitiate the statutory provision?

It is here sought to sustain the validity of the questioned provisions of the statute upon the rule or principle of “ab inconvenienti”. This principle, it is true, has been consistently followed in this state in cases involving prosecutions for practising medicine and other professions without a license; selling intoxicating liquors without being licensed so to do; illegal possession and transportation of intoxicating liquors, and in cases involving the question of citizenship or alienage. But in all these cases it is emphasized that the rule of convenience is applied only where the defendant has more convenient access to the proof, and where requiring him to go forward with such proof will not subject him to unfairness or hardship. In prosecutions for the doing of an act restricted to those who are licensed therefor, the rule of convenience is applicable because the accused, if licensed, can immediately show it without the least inconvenience. People v. Boo Doo Hong, 122 Cal. 606, 607, 55 P. 402. Where a statute made it an offense knowingly to conceal smoking opium illegally imported and threw upon a defendant found in possession of such opium the burden of showing that he had not acquired it through illegal importation, the presumption was sustained on the ground that no lawful purchase of smoking opium could occur in this country, and therefore, the possession alone gave rise to sinister implications. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904. Where an act of Congress placed upon an alien in deportation proceedings the burden of proving his residence and of excusing his failure to procure a certificate of residence from the Collector of Internal Revenue, it was held that in such a situation the shifting to the alien of the burden of explanation imposed no unreasonable hardship upon him. Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905. But, as pointed out in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, the fact that the defendant has the better means of information cannot, standing alone, justify the creation of such a presumption, for the defendant in every criminal case possesses at least an equal familiarity with the true facts, and in most cases, a greater familiarity with them than does the prosecution. Does that fact, however, justify the assertion under our law, that all defendants in criminal cases should assume the burden of going forward with the evidence? If such an argument is sound and be carried to its logical conclusion, then why could not the legislature validly command that the finding of an indictment, the holding of a defendant to answer by a committing magistrate, or even mere proof of the identity of the accused, should be presumptive evidence of the existence of all the facts essential to guilt?

Undoubtedly the defendant in the instant case knew better than anyone else whether he himself altered the identification marks on the firearm in question. True, it would be a convenience for the prosecution to rely upon the presumption and cast upon the defendant the burden of producing evidence to rebut it. But the burden cannot thus be lawfully shifted when the fact of possession is not relevant to guilt of the offense of altering certain identifying marks upon the weapon. If the offense charged was possession of the pistol without a permit, the situation would be quite different and the presumption would be legal because neither inconvenience nor hardship would be worked upon the defendant in requiring him to produce such a permit, while to require the prosecution to negative such possession of a permit would require endless search of records, files and documents.

Many people might acquire a firearm in good faith, and unacquainted with where marks of identification are placed upon the weapon, not even look for them. Yet such innocent possession, under the wording of section 13 of the act, creates a presumption that such possessor is guilty of a felony and requires him to do what might be well nigh impossible––that is, produce evidence as to who did make the alterations.

Respondent relies upon the case of People v. Osaki, 209 Cal. 169, 286 P. 1025, in which case proof of alienage of the defendants was in issue in connection with the Alien Land Law, forbidding ownership of land by Japanese aliens. In the cited case the court upheld the presumption of alienage under section 1983 of the Code of Civil Procedure. But, as in the medical and other license cases, no hardship was worked upon the defendants in requiring them to produce proof of their citizenship, for such fact was peculiarly within their knowledge, while to require the prosecution to prove alienage would be well nigh impossible. We think it may fairly be stated that the principle of ab inconvenienti”, which is an exception to the general rule applicable to criminal prosecutions, has, in this state, been confined to the particular line of cases where it becomes necessary, in order to constitute the offense charged, for the prosecution to prove the non–existence of a license required by law or of a certificate of citizenship. In such cases it is easy for the defendant to meet the burden thus placed upon him. However, the rule should not be applied in the enforcement of law so as to relieve the prosecution of the imperative duty to establish the truth of the charge made against the accused. Any relaxation of the general rule in that regard should be strictly confined to the principle of the rule of convenience. In the instant case it is at once apparent to us that the gravamen of the offense denounced by section 13 of the act is not the possession of a firearm, but the alteration, changing, removal or obliteration of certain identification marks thereon. Manifestly, if the proof of the prosecution under section 13 were to stop with a showing that the accused was in possession of the firearm, not even the corpus delicti of the charged offense would be proven. In addition thereto, the prosecution must prove that such possessor altered the identification marks on the weapon. Indeed, such proof is vital to establish the corpus delicti of the offense charged. In our opinion, under such circumstances, the corpus delicti can no more be established with the aid of a presumption of defendant's guilt because of his possession than it could be shown by the extra–judicial statements or admissions of the accused. People v. Quarez, 196 Cal. 404, 238 P. 363. The rule of “ab inconvenienti” is not therefore, applicable herein.

The rule of comparative convenience of producing evidence of the ultimate fact is, in our opinion, but a corollary to the main and controlling test of the validity of a presumption created by statute, viz., the essential requirement that there shall be some rational connection between the fact proved and the ultimate fact presumed (Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519), and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. McFarland v. American Sugar Refining Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899. The essence of this requirement is tersely illustrated in the language used in Brightman v. United States, 8 Cir., 7 F.2d 532, 534, involving a prosecution under the Harrison Anti–Narcotic Act, 26 U.S.C.A. Int.Rev.Code, §§ 2550 et seq., 3220 et seq., and wherein the court said: “there is in our judgment no such rational connection between the fact of the possession of morphine in the Western district of Oklahoma and the fact of a purchase of it in that same district as to make the former prima facie evidence of the latter. Common experience does not support such a presumption.” So in the case with which we are here concerned, we are unable to perceive any reasonable connection or rational relationship between the fact proved, viz., possession of the weapon, and the ultimate fact to be presumed, i.e., alteration of identifying marks thereon. The relationship, if any, is strained, remote and not justified in the light of common experience. Section 13 of the statute herein shifts the burden of proof, and in a criminal case deprives the defendant of the protection of his constitutional guaranties. Running through all of the numerous authorities we have read on the subject, there is to be found a concession that such a statutory rule of evidence is a dangerous one, and should not be applied where it has no intrinsic evidential force, or where its application will impair some positive statutory or constitutional right. In the case of In re Wong Hane, 108 Cal. 680, 682, 41 P. 693, 694, 49 Am.St.Rep. 138, the supreme court had before it an ordinance of the city of Los Angeles, the effect of which was to make proof of the mere possession of a lottery ticket a misdemeanor, and to place upon the defendant the burden of showing that his possession was lawful or innocent. In declaring the ordinance void as unconstitutional the court said: “If there are any circumstances under which the possession of a lottery ticket may be lawful or innocent, a defendant who is charged with the offense of having such ticket in his possession is entitled to the presumption of innocence, and cannot be compelled to establish his innocence by affirmative proof. To the extent that the defendant is required to establish his innocence, the provisions of the ordinance violate his constitutional rights.” In citing with approval the case just mentioned, Mr. Justice Preston, in a well reasoned and carefully considered dissenting opinion in People v. Troche, 206 Cal. 35, 61, 273 P. 767, 778, sets forth the broad and historic background of the doctrine of presumption of innocence in the following language:

“This is no time or place for a lengthy dissertation upon this presumption, but it may be well remembered that its object is to protect the innocent and not to shield the guilty. It is a presumption of both law and fact. It was present in the Roman law and some authorities state that it marks back through Sparta and Athens to the Book of Deuteronomy. It was known to be a part of the common law as early as 1802. In 1817 Lord Gillies, in McKinley's Case (33 St.Tr. 275, 506), in speaking of this presumption said, among other things: ‘It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a degree of conviction short only of absolute certainty.’

“Blackstone maintained (1753–1765) that: ‘The law holds that it is better that ten guilty persons escape than that one innocent suffer.’ 4 Bl.Com., c. 27, margin page 358, ad finem.

“It is the strongest presumption known to the law. It is as much a part of our Constitution, both state and national, as if it were written therein in letters of burnished gold. This fact has been assumed many times in this state and in one case at least expressly stated. In re Wong Hane, 108 Cal. 680, 41 P. 693, 49 Am.St.Rep. 138. We presume that no one would contend that this presumption could be overthrown by any statutory enactment. Prima facie evidence or presumptions may be declared to exist where they flow logically from certain facts, but the presumption of innocence is ever present even in the deliberations of the jury and may alone and of itself sometimes avail to acquit the defendant.

“This court should be quick and decisive in its action to declare anew our Bill of Rights and to preserve the essential attributes of a jury trial as known to the common law and as preserved by our Constitution. Article 1, §§ 7 and 13, Const.”

The claim that application of the presumption in the instant case resulted in doing justice to the particular defendant at the bar, does not justify its application, for while a departure from those long established, sound, legal principles and constitutional guaranties may result in justice for a particular defendant, it is dangerous to the community, and in the final analysis, serves only to pave the way for conviction of the innocent.

Illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from established legal modes of procedure. In a strong dissenting opinion delivered by Mr. Justice Sutherland of the Supreme Court of the United States in Associated Press v. National Labor Relations Board, 301 U.S. 103, 142, 57 S.Ct. 650, 659, 81 L.Ed. 953, we are counselled to “withstand all beginnings of encroachment. For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time”. The acquittal of a guilty person is truly a miscarriage of justice, but the conviction of an innocent person through relaxation of those fundamental legal principles such as the constitutional “due process of law” provision, art. 1, § 13, the presumption “that a person is innocent of crime or wrong”, subdivision 1, section 1963, Code of Civil Procedure, would be a tragedy. It is the duty of the courts to be watchful of the constitutional and inalienable individual rights of the citizen and to halt any stealthy encroachments thereon.

We here quote the powerful and significant language of the late Mr. Presiding Justice Houser of this court in the case of People v. Bullock, 123 Cal.App. 299, 305, 11 P.2d 441, 443, wherein he said: “I reluctantly concur in the judgment. My consent to the affirmance of the judgment has resulted solely from the compelling force of the precedents as established by the cases to which, in the opinion of my associate, attention has been directed. It is clear that the constitutional guaranty of ‘due process of law’ is in great danger of being set at naught. With but slight extension of the rule, either as promulgated by the statute, or as judicially announced preceding its enactment, in any criminal prosecution in which the district attorney may find it difficult to produce evidence of the guilt of the defendant, he may invoke the doctrine of ‘ab inconvenienti’ and thus shift to the defendant the entire burden of establishing his innocence. The formerly time–honored, but now not greatly respected rule of law which requires the prosecution to prove beyond a reasonable doubt every essential element of the crime of the commission of which the defendant is charged would appear to have been given a construction which would seem to be wholly at variance with the plain language of the ordinary rule and completely out of harmony with ancient judicial precedents. It is but a short step backward to a former procedure which permitted prosecution on mere hearsay information, and on which, in the absence of the most positive affirmative proof of innocence, the accusation itself was sufficient to sustain a judgment of conviction. To my mind, the trend of judicial utterance is too much toward the abrogation of many of those constitutional principles which affect human rights and which were most dearly obtained. With the destruction of the doctrine of ‘burden of proof on the prosecution,’ no innocent man will be safe; but personal liberty will again become a prized, if not an uncommon, condition or attribute to the citizen of the republic.”

We therefore conclude that the portion of section 13 of the aforesaid act which provides that “possession of any such firearm upon which the same shall have been changed, altered, removed, or obliterated, shall be presumptive evidence that such possessor has changed, altered, removed, or obliterated the same” is unconstitutional and void; that therefore the giving to the jury of the instruction embodying such presumption constituted prejudicial error and invaded the substantial rights of the defendant.

For the foregoing reasons the “judgments” as to Counts I, II and III herein are consolidated and modified to read: “Whereas the said Aaron Scott has been found guilty of the crime of rape, a felony, as defined and prescribed in subdivisions 1, 3 and 4 of section 261 of the Penal Code, being separate statements of the same offense, it is therefore ordered, adjudged and decreed that the said Aaron Scott be punished by imprisonment in the state prison of the State of California at San Quentin for the term prescribed by law”. As so modified the judgment and the order denying a new trial are and each is affirmed.

The judgment and the order denying a new trial as to Count IV is affirmed.

The judgment and the order denying a new trial as to Count V is reversed and the cause remanded for a new trial upon such count.

WHITE, Justice.

DORAN, J., concurs. YORK, P. J., concurs in the conclusions reached.