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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Frank W. CRAMER, Defendant and Appellant.

Cr. 11755.

Decided: January 05, 1967

Kenneth H. Wechsler, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Derald E. Granberg and Frank C. Damrell, Jr., Deputy Attys. Gen., for plaintiff and respondent. Attys. Gen., for plaintiff and respondent.

Defendant was charged with a violation of Penal Code section 288 in that he did commit a lewd act upon a boy under the age of 14 years named Phillip. After a jury verdict of guilty the court suspended proceedings and granted probation. This appeal is from that order, which is deemed a judgment for the purpose of appeal (Pen.Code, §1237, subd. 1).

The order must be reversed because the defendant was prejudiced by the admission of improper evidence. To point up the issue the trial record will be referred to briefly.

Phillip, age 13, testified that in April 1965 he and some of his youthful friends visited defendant's home in Venice on three or four occasions. On one of those occasions defendant performed an act of oral copulation on him.

The prosecution then called as its witness a boy named James, age 15, who was one of the group who had visited the Venice home with Phillip. James testified (over objection) that he had gone swimming with defendant at a home in Brentwood, and that afterwards, in the dressing room, defendant had committed an act of oral copulation upon him. James' mother testified to facts tending to corroborate James' story. Two other women testified that they had gone to defendant's home in Venice to find the son of one of the women. This testimony was relevant only as it tended to suggest some consciousness of guilt on defendant's part with respect to his conduct with that boy.

Defendant, testifying on his own behalf, admitted having associated with the boys, but denied having committed any sexual act with either Phillip or James.

The testimony of James, his mother, and the other two women tends to show a course of conduct on the part of this defendant in associating with young boys and engaging in lewd conduct with them. It has long been recognized that this kind of evidence is relevant, because it shows a propensity or disposition on the part of the defendant to commit this particular kind of crime. A man who is professional burglar is more likely than someone else to commit another burglary. An experienced pickpocket is the likely suspect when one's wallet disappears. And a man with a proven disposition for illegal sexual behavior is very likely to continue that kind of practice.

Nevertheless, the authorities uniformly hold that where the sole relevance of such evidence is to prove a propensity to commit acts similar to those charged, it is not admissible. (See People v. Baskett, 237 Cal.App.2d 712, 715, 47 Cal.Rptr. 274 and authorities cited.)1

The reasons behind this rule are summarized by Dean Wigmore:

‘The natural and inevitable tendency of the tribunal—whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. Moreover, the use of alleged particular acts ranging over the entire period of the defendant's life makes it impossible for him to be prepared to refute the charge, any or all of which may be mere fabrications.’ (1 Wigmore, Evidence (3d ed. 1940) § 194, p. 646.)

Evidence of prior criminal acts is sometimes admitted when needed to prove some issue in the case such as the identity of the actor or the intent with which an act was done. But in the case at bench there was no need to resort to evidence carrying such prejudicial side effects. The victim was well acquainted with defendant, and there could be no question about his identification. The conduct which Phillip described left no doubt as to the lewd intent of the actor, if the act was done as the witness describe it.

The Attorney General argues that the evidence of the defendant's conduct with other boys shows a common plan, design or scheme and is admissible upon that ground. It is impossible to reconcile all of the appellate court opinions if this state upon the subject of ‘common design’ and we shall not attempt to do so.2 In this opinion we discuss only the law as applied to the facts of this case, and the decisions relied upon by the Attorney General.

Preliminarily it should be noted that in the case at bench it was not necessary for the prosecution to prove that the offense charged was one of several crimes committed pursuant to a common plan. Thus ‘common design’ was not itself an issue, and evidence of that fact would not be admissible unless it tended to prove some other fact in issue.

In People v. Peete, 28 Cal.2d 306, 169 P.2d 924, a murder case, evidence that the defendant had committed an earlier murder was received for the purpose of establishing the motive and identity of the killer. There was such a close resemblance in the way the two crimes were planned and carried out (i. e., the modus operandi) that it was reasonable to infer that the person who committed the first was also guilty of the second.

People v. Honaker, 205 Cal.App.2d 243, 22 Cal.Rptr.829, and People v. Zabel, 95 Cal.App.2d 486, 213 P.2d 60, were both prosecutions for lewd conduct(under Pen.Code, § 288) in which the defendants' conduct might have been found to be accidental. Proof of prior conduct of a similar nature was held admissible as evidence that the acts were done with lewd intent, not accidentally.

People v. Malloy, 199 Cal.App.2d 219, 18 Cal.Rptr. 545, also involved lewd conduct with children. The defendant was well known to the victims and the acts described by the victims could hardly have been thought innocent. Nevertheless, proof of similar prior acts was held to be admissible, both to prove intent and to prove common design. The appellate court there expressed the view that defendant's plea of not guilty placed in issue his intent, thereby making this kind of proof of proof of intent proper.

People v. Minkowski, 204 Cal.App.2d 832, 23 Cal.Rptr. 92, a rape case, involved no question of admissibility of evidence. But that opinion, in commenting upon the jury instructions, reflected the view which that court had previously expressed in Malloy that ‘common plan or design’ is an issue which the prosecution is entitled to prove even where there is no real question of intent or identity.

The Malloy opinion cannot be reconciled with the underlying principle as it has been expounded by the text writers and the courts.

As we pointed out in People v. Baskett, 237 Cal.App.2d 712, 718, 47 Cal.Rptr. 274, the mere fact that defendant pleaded not guilty is not enough to justify the introduction of this kind of evidence. Some distinction must be drawn between the cases where there is reason to expect a genuine controversy over intent or identity and those where the circumstances quite clearly preclude and defense on those issues.

‘The remarks of Lord Sumner in Thompson v. The King, [1918] App.C. 221, 232 are pertinent: ‘Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.’' (McCormick on Evidence (1954) 331, fn. 24.)

Although the Malloy decision acknowledges that the rule of admissibility has no special exception for cases involving lewdness and other sex crimes, the reasoning of the Malloy opinion would expand the admission of prior criminality in a great variety of situations. The prior offenses of a burglar would always be admissible as a part of the prosecution's case in chief to prove the defendant's ‘common plan’ or intent to steal. The record of a check artist would always be admissible to show his plan or intent to defraud his current victim. As used in Malloy the expression ‘common plan or design’ is simply another name for disposition or propensity.

In the case at bench the evidence of defendant's conduct with James at the swimming pool showed him to be the kind of man who seeks the company of teen-age boys for sexual gratification. If that propensity is called a ‘design,’ then every occasion when defendant did the same thing with another boy was a part of a ‘common design.’ But evidence of criminal disposition may not be made admissible for its own sake simply by calling it ‘common design.’ As we pointed out above, the evidence is relevant, but inadmissible for other reasons.

The case at bench presented a square issue of credibility: Phillip testified to acts which, if committed, established the prosecution's case. Defendant denied that those acts had taken place. Consistent with the long-established policy of the law, the jury should have been allowed to decide whether defendant committed the offense charged without knowing that he had done this kind of thing with another boy at another time. Receiving that evidence of the other offense was unquestionably prejudicial.

The judgment is reversed.

I dissent. It is my view that the trial court did not abuse its discretion in admitting the testimony of James. I find it unnecessary to dwell upon the issues respecting the admissibility of the testimony of the three mothers, since, it is clear, the outcome would have been the same had that evidence been excluded. (People v. Watson, 46 Cal.2d 818, 299 P.2d 243.)

The testimony of James was admitted on the theory that it showed a ‘mode of operation‘—another way of saying that it showed a characteristic method, scheme or plan, sometimes described as a ‘modus operandi.’ (See Witkin, Cal. Evidence (2d ed.) § 347, pp. 307–308.) The issue presented, as the majority opinion of this court explains, is whether this evidence has relevance apart from its admitted relevance as tending to show defendant's bad character. Does it, in any other respect, ‘tend logically, naturally, and by reasonable inference’ to establish any material fact in the People's case or to overcome any defense of defendant?

From the proof of a plan made, or a unique system used by a defendant, an inference may be drawn that the defendant did the act charged. The theory being, ‘* * * to show (by probability) a precedent design which in its turn is to evidence (by probability) the doing of the act designed.’ (2 Wigmore, Evidence (3d ed. 1940) § 304, p. 202.)

The victim in this case testified that he was introduced to defendant by defendant's stepbrother, who was about the victim's age. On that occasion defendant suggested that they should all go swimming and, when the boys agreed, drove them to a home which had a swimming pool. (In his testimony defendant indicated that he handled the maintenance of this home while its owners were away.) While there, defendant served them drinks of vodka and 7-Up and showed them Playboy magazines. The victim was invited back to this house on one or two other occasions and also visited the house where defendant lived. At defendant's house he was also served liquor by defendant and looked at Playboy magazines. On his last visit defendant performed the act of oral copulation. Both at the home with the pool and at defendant's apartment there were several other boys his own age present. James was one of these boys.

After an offer of proof, the court permitted James to testify about his experience with defendant at the house with the swimming pool. Without recounting the details, suffice it to say, the manner in which defendant approached the boy and performed the act was quite similar to that used by defendant on the victim. Further, the acts occurred on about the same date; the boys knew each other and ‘ran’ with the same group of boys; like the victim, James was invited to the home with the pool, where he, defendant and the other boys, including the victim, went swimming.

This testimony clearly tended to establish a pattern, or design, or system, or scheme, or modus operandi—whichever you want to call it—on defendant's part, to seek out young boys, cultivating their friendship and placing them in his debt by entertaining them at his home and at the house with the pool, in order to facilitate the accomplishment of the act charged. The testimony was relevant because, in showing this design on defendant's part, it tended to establish that defendant carried out his purpose by committing the act charged. Since the evidence had relevance apart from merely showing a ‘propensity’ on defendant's part to commit this type of crime, the court properly admitted it for such purpose. (See People v. Malloy, 199 Cal.App.2d 219, 18 Cal.Rptr. 545; People v. Minkowski, 204 Cal.App.2d 832, 23 Cal.Rptr. 92; People v. Honaker, 205 Cal.App.2d 243, 22 Cal.Rptr. 829; People v. Peete, 28 Cal.2d 306, 169 P.2d 924.)

In the majority opinion, my colleagues place particular reliance on the recent decision of this court in People v. Baskett, 237 Cal.App.2d 712, 47 Cal.Rptr. 274. Upon its facts that case bears no resemblance to this case. The other offenses admitted in evidence in Baskett occurred approximately 30 years before the act the defendant was charged with committing. Further, the evidence was not offered as part of the People's case in chief, but in rebuttal, and at a point when the sole issue was one of credibility. This court quite properly held that the other offenses were not connected with the charged offense by anything other than the supposed disposition of the defendant to commit similar offenses.

I would affirm the judgment.


1.  Accord: People v. Smith, 246 A.C.A. 550, 552–553, 54 Cal.Rptr. 740.

2.  See People v. Ollado, 246 A.C.A. 686, 696, 55 Cal.Rptr. 122 (dissenting opinion).

FILES, Presiding Justice.

KINGSLEY, J., concurs.