PEOPLE v. JOHNSON

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edwin C. S. JOHNSON, Defendant and Appellant.

Cr. 4447.

Decided: December 29, 1967

Robert Nareau, Woodland, Court Appointed Counsel, for defendant-appellant. Thomas C. Lynch, Atty. Gen., by Edsel Haws, and Arnold O. Overoye, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

On February 7, 1964, the Grand Jury of Yolo County accused defendant of a violation of section 285 of the Penal Code (incest). Defendant thereafter entered a plea of guilty and judgment was pronounced. On July 28, 1966, by order of the United States District Court, the proceedings were set aside. Defendant was again arraigned, and of January 24, 1967, trial was commenced. On February 1, 1967, defendant was found guilty by a jury of a violation of section 285 of the Penal Code, and on February 17, 1967, judgment of convection and sentence was pronounced. He appeals from this judgment.

The facts are as follows: On the night of January 11, 1964, Elaine, age 15, was at home, where she lived with her parents and six brothers and sisters. At the present trial, she testified that on that night her father, the defendant, fondled her breasts and private parts and that she had masturbated him. She also admitted isolated instances of sexual conduct short of intercourse on occasions prior to January 11, 1964. At the trial, Elaine denied ever having sexual intercourse with her father.

The People then introduced evidence of prior inconsistent statements given under oath before the Yolo County Grand Jury on February 7, 1964. This testimony revealed that on January 11, 1964, Elaine had sat up with her father after the family had retired. Defendant undressed her and the two had sexual intercourse. Penetration was effected. Elaine also testified to acts of sexual intercourse with defendant at least a half dozen times on occasions between June and September of 1963 when her mother was present. Additional acts committed with defendant after her mother became aware of their relationship were committed at night, of when her mother was working. Defendant had explained to Elaine that it was better for him to do it with her than to go out with a prostitute.

In accounting for the difference in her testimony, Elaine stated that her testimony before the Grand Jury had been suggested and coerced by former District Attorney Thomas Purtell, who promised psychiatric care for defendant. Purtell, however, testified that the statements made to him, which were similar to the Grand Jury testimony, were made without promises or requests to slant of color her testimony. Elaine denied being interviewed by Lieutenant Gorman of the sheriff's office, at which time, according to the testimony of Gorman, Elaine stated that she had engaged in acts of sexual intercourse with her father.

Eleanor Johnson, wife of defendant, also testified at the trial. She denied any knowledge of sexual activities of any sort between her daughter and defendant. As with her daughter, Elaine, prior inconsistent statements before the Yolo County Grand Jury were introduced which revealed that she was aware of sexual activities between the two. Mrs. Johnson first discovered this conduct in late 1961 when she walked into the bedroom and discovered defendant's hand inside the top of her daughter's pajamas. Defendant told her that he had been intimate with Elaine. He explained that Eleanor's working schedule made her absent and caused her to be tired as a result of which he got his sexual relief from Elaine in lieu of going outside the home. The difference in Mrs. Johnson's testimony was explained by her as an exaggeration.

According to her Grand Jury testimony, defendant's wife made the effort to improve their relations to the point that she became pregnant in February. In August of 1962, however, she discovered her daughter nude in bed with defendant. This conduct was explained by defendant as caused by his wife's tired condition and her pregnancy. Thereafter, Mrs. Johnson would sometimes send Elaine to defendant, at his request, on the pretense of taking some coffee to him.

There were also occasion when the three parties would be in bed together. Sometimes Mrs. Johnson would leave; other times she would remain. Defendant would fondle the two of them and Mrs. Johnson observed Elaine lying on top of defendant and defendant lying on top of Elaine. In explanation of her testimony that she falsely accused defendant of incest, Mrs. Johnson alleged that she had been coached by the district attorney who had told her that an incestuous relationship between defendant and Elaine would have to be shown if defendant were to get psychiatric treatment of any sort.

Thereafter she staunchly maintained that Lieutenant Gorman of the sheriff's office had planted the seed of incest in her mind. It subsequently appeared that Mrs. Johnson originally revealed defendant's conduct to a Mrs. Griffis, who had charge of the Yolo County Receiving Home for neglected and abandoned children. Mrs. Johnson appeared neither vindictive, spiteful nor revengeful toward her husband when that disclosure was made. Mrs. Griffis told the authorities what Mrs. Johnson had disclosed to her.

Defense evidence consisted of testimony given by three brothers of Elaine, who stated that she had a poor reputation for truth and veracity. Through cross-examination of Elaine and her mother, defendant sought to show that both Mrs. Johnson and her daughter were biased and that both had been improperly coached by the district attorney's office. Defendant did not take the stand in his own behalf.

Counsel for defendant urges ten grounds of error. Defendant, in propria persona, has filed with this court a document entitled ‘Appellant's Rebuttal in answer to Respondent's Brief’ in which he urges fifteen ‘grounds for reversal.’ This latter document raises a number of argument not asserted by counsel. ‘Pro se documents filed by a defendant who has counsel of record will not be recognized, and we need not enumerate of discuss [his] contentions.’ (People v. Clayton, 218 Cal.App.2d 364, 369, 32 Cal.Rptr. 679, 682, citing People v. Mattson, 51 Cal.2d 777, 798, 336 P.2d 937.) This opinion will consider only the contentions raised by defendant's counsel. We have, however, noted defendant's added contentions and find them to be without merit.

We turn first to the contention that the trial court committed error tn applying section 1235 of the Evidence Code (new), which code became operative on January 1, 1967, and governs proceedings in actions brought on or after that date. (Evid.Code, § 12.) Prior to the adoption of this code the California rule was that prior inconsistent statements where admissible only for impeachment purposes and had no independent value as affirmative evidence. Section 1235 of the code makes such statements admissible as an exception to the hearsay rule with independent substantive value, and such statements are now admissible to prove the truth of the matter stated.

Section 12351 of the Evidence Code provides:

‘Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.’

Section 770 of the Evidence Code provides:

‘Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

‘(a) The witness was so examined while testifying as to give him an opportunity to explain of to deny the statement; or

‘(b) The witness has not been excused from giving further testimony in the action.’

The Evidence Code creates a new exception to the hearsay rule by permitting the prior inconsistent statements of a witness to be received for the truth of the matter stated.

Defendant maintains that this was not the law at the of the alleged offense with which he was charged, nor the law at the time of his plea, and argues that section 1235 was unconstitutionally applied to his trial in that it constitutes an ex post facto law as so applied. An ex post facto law is a retrospective statute applying to crimes committed before its enactment, substantially injuring an accused, and the passage of such a law is prohibited by the Constitution. (See U.S.Const., art. I, §§ 9, 10; see also Cal.Const., art. I, § 16.)

Defendant cites Calder v. Bull, 3 Dall. 386–401, 1 L.Ed. 648, wherein the court, at page 650, sets forth one type of law which it characterizes as ex post facto: ‘Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender.’ Witkin notes, however, that ‘[s]ubsequent cases have indicated that the statute is invalid only if it punishes an act innocent when done, increases the punishment or deprives a person of a defense,’ citing Beazell v. State of Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216. (3 Witkin, Summary of California Law, § 95, p. 1894.) A recent United States Supreme Court case defines an ex post facto law as follows: ‘An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action;’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’' (Bouie v. City of Columbia, 378 U.S. 347, 358, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894, 899–900.) Although the court cites Calder as authority for this statement, it omits any mention of changes in evidence or procedure, as set forth in Calder.

Witkin comments further (ibid., p. 1895): ‘Earlier cases, such as Calder v. Bull, supra, expressed the view that a retroactive change making less or difference evidence admissible to convict would be ex post facto. The present rule is settled, however that a change in a rule of evidence or procedure is not invalid unless it deprives the defendant of some substantial protection. (Beazell v. [State of] Ohio, supra.) Thus the following retroactive laws have been upheld: Statute permitting introduction of a defendant's letter for comparison handwriting (Thompson v. [State of] Missouri (1897) 171 U.S 380, 18 S.Ct. 922, 43 L.Ed. 204); statute enlarging the class of persons competent to testify by permitting testimony of a felon (Hopt v. [People of Territory of] Utah (1883) 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262); statute providing for joint trials of persons jointly indicted, where formerly separate trials could be demanded (Beazell v. [State of] Ohio, supra); California constitutional amendment giving trial court power to comment on the evidence (People v. Talkington (1935) 8 C[al.]A[pp.]2d 75, 47 P.2d 368); P.C. 190.1, providing for separate determinations of guilt and penalty in murder cases (People v. Ward (1958) 50 C[al.]2d 702, 706, 328 p.2d 777 [76 A.L.R.2d 911]).’

In Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 209–210, 28 L.Ed. 262, 268–269, the court said:

‘But it is insisted that the act of 1882, so construed, would, as to this case, be an ex post facto law, within the meaning of the constitution of the United States, in that it permitted the crime charged to be established by witnesses whom the law, at the time the homicide was committed, made incompetent to testify in any case whatever.

‘* * *.

‘* * * Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are nor ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.

‘The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but—leaving untouched the nature of the crime and the amount or degree of proof essential to convection—only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions of trials thereafter had, without reference to the date of the commission of the offense charged.’

In Thompson v. State of Missouri, supra, 171 U.S. 380, 18 S.Ct. 922, 924–925, 43 L.Ed. 204, 207–208, the court said: ‘If persons excluded upon grounds of public policy at the time of the commission of an offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense. Nor can the new rule introduced by it be characterized as unreasonable; certainly not so unreasonable as materially to affect the substantial rights of one put on trial for crime. The statute did not require ‘less proof, in amount or degree,’ than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt. Whether he wrote the prescription for strychnine, or the threatening letter to the church organist, was left for the jury; and the duty of the jury, in that particular, was the same after as before the passage of the statute. The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused. * * * We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the rule established by that statute entrenched upon any of the essential rights belonging to one put on trial for a public offense.

‘* * * We mean now only to adjudge that the statute is to be regarded as one merely regulating procedure, and may be applied to crimes committed prior to its passage without impairing the substantial guarantees of life and liberty that are secured to an accused by the supreme law of the land.’

Although no California case has been found precisely in point, it was early decided that laws changing mere forms of procedure in a criminal action are not ex post facto, and that no constitutional difficulty is encountered in requiring past offenses to be tried under new forms of procedure. (People v. Mortimer, 46 Cal. 114, 118; see also People v. Campbell, 59 Cal. 243, 245–246.) In Campbell, the court noted (citing Cooley on Constitutional Limitations, p. 331) that the Legislature could not dispense with any of the substantial protections with which the existing law surrounds a person accused of crime. In view of the authorities cited herein, the application of section 1235 did not in our opinion deprave the defendant of any ‘substantial protections' for he was in no way deprived of a fair and impartial trial. Further, the legislation in question did not alter the rules of evidence by requiring less or different evidence than the law required at the time of the commission of the offense. (See People v. Ward, 50 Cal.2d 702, 710, 328 P.2d 777, 76 A.L.R.2d 911.) The change in the law did not deprive defendant of a protection in actual existence at the time of the crime, because at that time the incriminating testimony of these two witnesses was available for prosecution use and was admissible in evidence against him. The subsequent change in the law only preserved this availability and admissibility against the effect of an intervening retraction. Defendant's ex post facto claim seeks to capture an advantage from the retraction, not to protect him from incriminating evidence which was unavailable or inadmissible at the time of the crime. We therefore hold that the use of section 1235 as so applied did not constitute an ex post facto law. (See Thompson v. State of Missouri, supra, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204, 207–208.)

Defendant next argues that section 1180 of the Penal Code precluded the trial court from employing the new evidence rule. This section provides, in part: ‘The granting of a new trial places the parties in the same position as if no trial had been had.’ It is not clear, as defendant contends, how the new Evidence Code violated this section. In our view the use of the new code is, in fact, in compliance with section 1180 of the Penal Code. Furthermore, section 12 of the Evidence Code provides that the code, which became operative on January 1, 1967, governs proceedings brought on or after that date and specifically provides that a new trial commenced on or after January 1, 1967, shall be governed by the code. Defendant's trial commenced on January 24, 1967. (See People v. Stanley (Nov. 29. 1967) 67 A.C. 837, 63 Cal.Rptr. 825, 433 P.2d 913.) We find no error here. (See People v. Doherty, 67 A.C. 1, 13, fn. 9, 59 Cal.Rptr. 857, 429 P.2d 177.)

Defendant next contends it was error for the trial court to refuse to admit evidence offered by defendant to establish that Elaine had made a complaint, in a statement signed by her, of sexual misconduct against one Edwin L. Rudolph, who would testify that the charge was false. Elaine (on voir dire) testified her allegation against Rudolph was true. Defendant also offered to show Elaine had made a false accusation against another male person (an allegation by Elaine that he was the father of her illegitimate child). He cites People v. Hurlburt, 166 Cal.App.2d 334, 333 P.2d 82, 75 A.L.R.2d 500, in support of his contention. Hurlburt is not applicable here. The court there held that in a prosecution for lewd conduct with a nine-year-old girl it was reversible error to refuse to permit cross-examination of the child or introduction of evidence of similar charges made by her in the past against other men, which charges were admittedly false or were proved to be false.

In the case before us the charges were not ones which the witness had admitted were false or were proved false. Elaine maintained that Rudolph did attempt to sexually molest her the district attorney testified on voir dire that although his office made an investigation of the matter, he was not satisfied that the accused either did or did not commit these acts. He merely felt that there was insufficient evidence to prosecute.

Hurlburt is distinguishable on other grounds. This is not a case involving a single small child accusing an adult of sexual misconduct. Here, the grand jury testimony of Elaine was clearly corroborated by the testimony of the mother. Thus, there is here much more than the testimony of a young child and the denials of a defendant. Secondly, Elaine did not instigate the charge of incest, and thus, technically, she was not the prosecutrix. Rather, the complaint came to the attention of the authorities through a county official, Mrs. Griffis, who had received this admission, not as a charge filed by Elaine, but as one made by Elaine's mother. Thirdly, the witness here did not admit the charges were false. Rudolph's denial, even if he had been allowed to testify, would not necessarily prove the falsity of the charges. Hence it would not appear that the court erred in excluding the testimony in question. (Cf. People v. Buchel, 141 Cal.App.2d 91, 94–95, 296 P.2d 113.)

Defendant next urges error in the admission of the testimony of witness Joanne Griffis, who was called as a witness for the prosecution, alleging it to be hearsay and nonimpeaching. The facts are to the contrary.

Mrs. Eleanor Johnson allegedly made a statement to Mrs. Griffis, a county employee in charge of the receiving home for children, when she left her home one night after an altercation with defendant. On the stand, Mrs. Johnson, called as a witness for plaintiff, stated she may have talked to Mrs. Griffis, but couldn't remember what she said. She also stated that the incest idea was originally conceived by one of the police officers. It would thus appear that impeachment was proper (see People v. Young, 70 Cal.App.2d 28, 34, 160 P.2d 132), both to show a conversation was had and that the instigation for the charges came from Mrs. Griffis and not the officer.

It should also be noted that the defense attempted to show that Mrs. Johnson acquiesced in the incest prosecution only because of her rage and vindictiveness toward defendant. Thus the conversation was necessary to establish Mrs. Griffis as a person competent to testify to Mrs. Johnson's demeanor at the time. Mrs. Griffis' testimony, given after that of Eleanor Johnson, which was impeaching, was that Mrs. Johnson was not bent upon her husband's convection out of a sense of vindictiveness. To the contrary, Mrs. Griffis testified she knew the Edwin Johnson family; that Elaine had been placed in the receiving home at one time and the mother Eleanor Johnson had sought refuge in this home at another time; that the mother appeared at the home several months later in a severely beaten and bruised condition; that she appeared frightened and related her story of the defendant's intimate relations with Elaine; that on this occasion the mother was crying, rather quiet, submissive, resigned, not vindictive or spiteful toward her husband. Such evidence would appear to be proper to show the existence or nonexistence of bias. (Evid.Code, §§ 780, 785.)

Defendant also claims, however, that this testimony constituted hearsay. This testimony constitutes a prior inconsistent statement, under section 1235 of the Evidence Code. (See also Evid.Code, § 770.) Though Mrs. Johnson did not deny making statements to Mrs. Griffis, she was unable to recall the events. In such a situation, this exception to the hearsay rule should apply in order to fully ascertain the truth of the matter. Secondly, Mrs. Johnson did testify that it was a police officer who conceived the idea of incest—not that she told Mrs. Griffis of the facts which Mrs. Griffis later imparted to the authorities. This is a prior inconsistent statement which may come in under section 1235 of the Evidence Code.

We have examined the remaining contentions of defendant and in the light of the record find them to be without merit.

The judgment is affirmed.

FOOTNOTES

FN1. This section is explained by the Law Revision Commission Comment as follows:‘Under existing law, when a prior statement of a witness that is inconsistent with his testimony at the trial is admitted in evidence, it may not be used as evidence of the truth of the matters stated. Because of the hearsay rule, a witness' prior inconsistent statement may be used only to discredit his testimony given at the trial. Albert v. McKay & Co., 174 Cal. 451, 456, 163 Pac. 666, 668 (1917).‘Because a witness' inconsistent statement is not substantive evidence, the courts do not permit a party—even when surprised by the testimony—to impeach his own witness with inconsistent statements if the witness' testimony at the trial has not damaged the party's case in any way. Evidence tending only to discredit the witness is irrelevant and immaterial when the witness has not given damaging testimony. People v. Crespi, 115 Cal. 50, 46 Pac. 863 (1896); People v. Mitchell, 94 Cal. 550, 29 Pac. 1106 (1892); People v. Brown, 81 Cal.App. 226, 253 Pac. 735 (1927).‘Section 1235 permits an inconsistent statement of a witness to be used as substantive evidence if the statement is otherwise admissible under the conditions specified in Section 770—which do not include surprise on the part of the party calling the witness if he is the party offering the inconsistent statement. Because Section 1235 permits a witness' inconsistent statements to be considered as evidence of the matters stated and not merely as evidence casting discredit on the witness, it follows that a party may introduce evidence of inconsistent statements of his own witness whether of not the witness gave damaging testimony and whether or not the party was surprised by the testimony, for such evidence is no longer irrelevant (and, hence, inadmissible).‘Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is mire likely to to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies of tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth of falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the ‘turncoat’ witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.'.  FN1. This section is explained by the Law Revision Commission Comment as follows:‘Under existing law, when a prior statement of a witness that is inconsistent with his testimony at the trial is admitted in evidence, it may not be used as evidence of the truth of the matters stated. Because of the hearsay rule, a witness' prior inconsistent statement may be used only to discredit his testimony given at the trial. Albert v. McKay & Co., 174 Cal. 451, 456, 163 Pac. 666, 668 (1917).‘Because a witness' inconsistent statement is not substantive evidence, the courts do not permit a party—even when surprised by the testimony—to impeach his own witness with inconsistent statements if the witness' testimony at the trial has not damaged the party's case in any way. Evidence tending only to discredit the witness is irrelevant and immaterial when the witness has not given damaging testimony. People v. Crespi, 115 Cal. 50, 46 Pac. 863 (1896); People v. Mitchell, 94 Cal. 550, 29 Pac. 1106 (1892); People v. Brown, 81 Cal.App. 226, 253 Pac. 735 (1927).‘Section 1235 permits an inconsistent statement of a witness to be used as substantive evidence if the statement is otherwise admissible under the conditions specified in Section 770—which do not include surprise on the part of the party calling the witness if he is the party offering the inconsistent statement. Because Section 1235 permits a witness' inconsistent statements to be considered as evidence of the matters stated and not merely as evidence casting discredit on the witness, it follows that a party may introduce evidence of inconsistent statements of his own witness whether of not the witness gave damaging testimony and whether or not the party was surprised by the testimony, for such evidence is no longer irrelevant (and, hence, inadmissible).‘Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is mire likely to to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies of tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth of falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the ‘turncoat’ witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.'

REGAN, Associate Justice.

PIERCE, P. J., and FRIEDMAN, J., concur.

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