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

The PEOPLE, Plaintiff and Respondent, v. Charlie THOMAS, Defendant and Appellant.

Cr. 28227.

Decided: December 27, 1976

Bruce Robert Kay, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Nancy A. Saggese, Deputy Attys. Gen., for plaintiff and respondent.

In a 3-count information, defendant was charged with: (count I) violating Pen.Code § 288, a felony, on 16 Dec. 74 with Marsha R. T.; (count II) the same offense with the same minor during the month of Nov. 74; and (count III) violating Pen.Code § 288, a felony, during Nov. 74 with Regina G. T. Defendant pled not guilty, but a jury, on 18 Sep. 75, found him guilty of all three counts. The court placed defendant on probation under various conditions. He appeals from the judgment of conviction (order for probation, Pen.Code § 1237). He also attempts to appeal from his conviction by jury verdict rendered on 18 Sep. 75, but any attempt to appeal from the jury's verdict is hereby dismissed, since a verdict is not appealable. (Witkin, Cal.Crim.Proc. § 647, p. 640.)

The Pen.Code section 288 offenses occurred on or about the dates alleged in the information at a time when Marsha was 12 (date of birth: 12 Oct. 62) and Regina was 9 (date of birth: 31 Jan. 65). One victim was defendant's stepdaughter and one a natural daughter.

After a hearing on defendant's objections, defendant had testified on cross-examination by the prosecution, that he had never molested his daughter Clover, at any time. Clover Thomas was defendant's daughter by his first wife and, at the time of trial, she was 25 years old.

Defendant first contends it was error for the trial court to admit the testimony of his daughter, Clover, against him. We disagree. She first testified for the defendant and, thereafter, was called in surrebuttal as a witness for the prosecution.

Clover's testimony bolstered the veracity of Marsha and Regina, particularly since defendant testified that neither was telling the truth and he denied their accusatory testimony. The testimony was admissible. (People v. Stanley, 67 Cal.2d 812, 817, 63 Cal.Rptr. 825, 828, 433 P.2d 913, 916 [1967]: ‘. . . where the basic issue of the case is the veracity of the prosecuting witness and the defendant as to the commission of the acts charged, the trier of fact is not aided by evidence of other offenses where that evidence is limited to the uncorroborated testimony of the prosecuting witness.’; and see: People v. Kazee, 47 Cal.App.3d 593, 596, 121 Cal.Rptr. 221 [1975]; People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220 [1967].)

Defendant next contends the trial court erred by refusing to read to the jury an instruction which defendant requested.1 This instruction allegedly was based upon a suggestion appearing in fn. 6, People v. Rincon-Pineda, 14 Cal.3d 864, 882–883, 123 Cal.Rptr. 119, 538 P.2d 247 (1975) which deals with CALJIC Inst. No. 10.22. However that case holds that the giving of such an instruction is not mandatory and that it is error to give CALJIC Inst. No. 10.22. Our Supreme Court, instead, focuses upon CALJIC instructions Nos. 2.20 and 2.22 and its own suggested instruction (Rincon-Pineda, supra, 14 Cal.3d at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247). These instructions were given by the trial court in the present action. We find no error.

Next, defendant contends the trial court erred in not giving, sua sponte, instructions on contributing to a minor's delinquency, an included offense, as set forth in Pen.Code § 272. It is true that contributing to a minor's (if under 14) delinquency is an offense included within the Pen.Code § 288 charged. (People v. Harvath 1 Cal.App.3d 521, 523–524, 82 Cal.Rptr. 48 [1969].) However, under the evidence here, if defendant was guilty at all, he was guilty under Pen.Code § 288. The testimony of Marsha, Regina and Clover indicated that conviction under § 288 was proper. (People v. Romero, 48 Cal.App.3d 752, 758, 121 Cal.Rptr. 800 [1975]; People v. Wells, 13 Cal.App.3d 265, 277, 91 Cal.Rptr. 460 [1970].)

The judgment is affirmed.

I concur in the affirmance. People v. Kazee (1975) 47 Cal.App.3d 593, 121 Cal.Rptr. 221, is a decision by another division of this district. There cannot be two contrary rules of evidence to be adopted by random selection by the bar and the trial courts of a single appellate district. Whether Kazee correctly interpreted other decisions, it remains the decided rule of evidence for this district unless the Supreme Court determines otherwise. Accordingly, I see no reason for this court to discuss the reasoning in Kazee and every reason for not attempting to reverse that decision in this division.

I dissent.

I cannot agree with the majority's view that it was not error for the trial court to permit the prosecutor to introduce othercrimes evidence against defendant. In this case defendant was charged in one count of the information with committing, in December, 1974, a lewd act with his stepdaughter, Marsha, a minor under fourteen years of age; and, in a second count, with committing the same offense with her in November, 1974. In a third count defendant was charged with committing a lewd act, in November, 1974 with his daughter, Gina (referred to as Regina in the information), a minor under fourteen years of age. Both of these minors testified to the three respective incidents.

Defendant testified in his own defense, and, on direct examination, denied having molested either of these minors as testified to by them. On cross-examination, he again denied any such molestation. Evidence had revealed that defendant had a third daughter, Clover, who was 25 years of age at the time of trial. On cross-examination of defendant, he was asked whether he had ever molested Clover. Objection was made to the question, but the trial judge ruled that he would permit defendant to be cross-examined about any acts of sexual molestation of Clover, as well as permitting the prosecutor to call Clover as a witness to testify to such acts. The prosecutor proceeded to cross-examine defendant, seeking to elicit from him testimony that he had engaged in numerous acts of sexual relations with Clover prior to her becoming fourteen years of age. The defendant denied any such acts.

Clover was called as a witness by the prosecutor and was permitted to testify that from the time she was six years of age until she was about tweleve, defendant had committed lewd acts with her, and that, during the two-year period when she was twelve years of age until she was fourteen years of age, defendant had engaged in many acts of sexual intercourse with her.

Defendant urges the contention that the trial court committed error of reversible proportions in permitting the testimony of Clover regarding defendant's sexual conduct with her. The majority takes the view that such evidence was properly admitted, relying upon the cases of People v. Stanley (1967) 67 Cal.2d 812, 63 Cal.Rptr. 825, 433 P.2d 913, People v. Kazee (1975) 47 Cal.App.3d 593, 121 Cal.Rptr. 221 and People v. Covert (1967) 249 Cal.App.2d 81, 57 Cal.Rptr. 220. The theory of admissibility of Clover's testimony, relied upon by the majority, is that her testimony bolstered the veracity of the testimony of the two alleged victims of the three charged offenses, to wit, that of Marsha and Gina. The majority cites a quotation from Stanley to the effect that where the veracity of the prosecuting witness and the defendant is in issue, the trier of fact is not aided by evidence that defendant committed other offenses, if evidence of such other offenses is limited to the uncorroborated testimony of the prosecuting witness.

The majority makes the assumption that Stanley thus holds that, although an alleged victim of a charged sex offense is not permitted to testify to other uncharged offenses committed by the defendant upon the witness or others, testimony by other alleged victims of the commission by defendant upon them of similar uncharged offenses is admissible. This inference that Stanley authorizes evidence that defendant committed similar uncharged sex offenses on other victims is unwarranted. The Cover case, relied upon by the majority, does not so hold, although it is cited for such holding by the Kazee case. A careful reading of the Covert case, however, indicates that, in an incest case in which defendant's defense was an alibi, the court held admissible testimony that defendant had sexual relations with a daughter other than the daughter alleged to have been the victim of the charged offense. The theory of admissibility set forth in Covert is that of common design, plan or modus operandi, where identity is in issue. The Covert court expressly relied upon People v. Ing (1967) 65 Cal.2d 603, 55 Cal.Rptr. 902, 422 P.2d 590.

That Covert does not stand for the proposition that evidence that defendant committed uncharged sexual crimes with other victims becomes admissible to bolster the credibility of the victim of the charged offense, is established by the following statement from Covert: ‘The problem of admissibility in the present case is settled by People v. Ing, supra. In Ing, proof of a common scheme or plan was viewed as an independent ground of admissibility in a prosecution charging a specific act of rape by drugs; here, the charge involves a specific act of incest by threat, a crime distinguished chiefly in terms of the familial relationship between accused and accuser.’ (Covert, supra, 249 Cal.App.2d 81, at pp. 87–88, 57 Cal.Rptr. 220, at p. 224.) The Covert court also stated: ‘Our examination of the record eliminates any question of adequate similarity. The offenses described by the 19-year-old sister during her childhood and adolescence had identical character with those inflicted upon the 16-year-old prosecuting witness.’ (Covert, supra, 249 Cal.App.2d 81, at p. 89, 57 Cal.Rptr. 220, at p. 225.) (Emphasis added.)

I cannot agree with the Kazee court's assessment of the Covert holding. Kazee states: ‘In Covert, the court demonstrated that in a case such as this the admissibility of similar acts of sexual misconduct cannot be justified on any theory except as a permissible attempt to buttress the credibility of the prosecuting witness against the inevitable defense challenge.’ (Kazee, supra, 47 Cal.App.3d 593, at pp. 595–596, 121 Cal.Rptr. 221, at p. 223, fn. omitted.) In my opinion this is not a correct reading of Covert.

In a footnote, Kazee points out that ‘[t]here is an obvious analogy to the admissibility of prompt complaints by the prosecutrix in rape cases. See, e. g., People v. Burton, 55 Cal.2d 328, 351, 11 Cal.Rptr. 65, 75, 359 P.2d 433, 443: ‘. . . It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” (Kazee, supra, 47 Cal.App.3d 593 at p. 596, fn. 3, 121 Cal.Rptr. 221, at p. 223.) The Burton analogy is not well taken. It seems clear that evidence of complaints by victims in rape cases is offered to prove the truth of the facts asserted in the complaint and thus constitutes hearsay evidence. Such evidence should be deemed inadmissible by virtue of Evidence Code section 1200, subdivisions (a) and (b), unless such evidence comes within a recognized exception to the hearsay rule. (See Jefferson, California Evidence Benchbook, 1975 Supplement, § 1.3, pp. 3–6.)

Kazee also takes the position that the correctness of this theory of admissibility of other-crimes evidence in a sex case—to corroborate the testimony of a victim—established by Covert, is demonstrated by People v. Cramer (1967) 67 Cal.2d 126, 129, 60 Cal.Rptr. 230, 429 P.2d 582 and People v. Stanley, supra, 67 Cal.2d 812, 63 Cal.Rptr. 825, 433 P.2d 913.

But Kazee likewise misconstrues the holding of Cramer in stating that the Covert analysis was demonstrated by Cramer and Stanley. Cramer, like Covert, used as the justification for admitting evidence of a defendant's commission of other sex crimes, the theory of common design, plan or modus operandi. Thus, Cramer stated: ‘It is settled that evidence of other crimes is ordinarily admissible where it tends to show presence of a common design, plan, or modus operandi, and we recently recognized in People v. Kelley, supra [66 Cal.2d 232, 239, 57 Cal.Rptr. 363, 424 P.2d 947,] that this rule applies to sex offenses committed with persons other than the prosecuting witness.’ (Cramer, supra, 67 Cal.2d 126, at p. 129, 60 Cal.Rptr. 230, at p. 233, 429 P.2d 582, at p. 585.) The Cramer court then concluded that ‘[t]ested by these standards evidence of the offense committed with James [not the victim of the charged offense] was admissible. There were sufficient similarities in the commission of that offense with the one charged to justify admission of the evidence.’ (Cramer, supra, 67 Cal.2d 126, at p. 130, 60 Cal.Rptr. 230, at p. 233, 429 P.2d 582, at p. 585.) (Emphasis added.)

As a result of the misreading of the holdings of Stanley, Cramer and Covert, the Kazee court concluded: ‘Stanley is thus a clear vindication of the Covert theory that the rationale for admissibility of evidence of sexual misconduct with othes, in cases where there is no issue as to identity, absence of accident, and so forth, is simply corroboration of the complaining witness. Where such corroboration comes from the mouth of another witness, we admit it. When it consists of nothing but the complaining witness corroborating himself, we reject it.’ (Kazee, supra, 47 Cal.App.3d 593, at p. 596, 121 Cal.Rptr. 221, at p. 223.)

Kazee, therefore, while professing to follow Cramer, Stanley and Covert, actually creates a new rule of admissibility for evidence that defendant, in a sex case, committed similar crimes against victims other than the victim of the charged offense. But Kazee does not offer any explanation of how the corroboration theory of admissibility gets around the prohibition of Evidence Code section 1101, subdivision (a), that character-trait evidence, offered to prove that a defendant acted in accordance with his character trait and committed the offense in question, is inadmissible.

In my view, the Kazee decision is untenable and indefensible and should not be followed. Even though the theory of Kazee is that evidence of the commission by a defendant of an uncharged sex offense becomes admissible to corroborate the testimony of the victim, nevertheless, such evidence of a defendant's commission of a sex offense against a victim's sister or stepsister proves only that defendant has a character trait or disposition to have sexual relations with his minor daughters and stepdaughters which leads to theinference that he committed the charged offenses and had sexual relations with the victims named in the charged offenses.

The fact that the credibility of the victim-witness is an issue in a sex case, as it is an issue in nonsex cases, does not justify the admissibility of evidence that tends to corroborate that credibility if such evidence is in violation of established exclusionary rules of evidence.

In the case at bench, as in Kazee, the testimony of Clover that defendant committed acts of sexual misconduct with her over a period of approximately eight years, clearly violated the exclusionary rule for character-trait evidence (Evid.Code, § 1101, subd. (a)), relevant only to prove that defendant committed the charged offenses because he had a character trait, behavior pattern, or disposition for committing such offenses. The fact that a victim's credibility as a witness constitutes a crucial issue in a sex case does not offer any logical basis for creating the concept of witness-credibility corroboration as justification for evading the prohibition against the admissibility of other-crimes evidence, relevant only as craracter-trait evidence to prove disposition or a pattern of behavior. (Evid.Code, § 1100.)

Furthermore, this witness-credibility-corroboration concept, used by Kazee to suppot the credibility of the victim-witness in a sex case, should be considered as nothing more than a disguised method of attacking the credibility of the defendant as a witness. As such, it is also untenable because of the provisions of Evidence Code section 787. Section 787 provides that ‘evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.’

The viability of cases such as Cramer, Stanley, Covert and Kazee is now subject to serious question in light of the views expressed by the Supreme Court in subsequent cases such as People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267 and People v. Guerrero (1976) 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366. The California Supreme Court made it quite clear in Guerrero that character-trait or propensity-trait evidence offered by the prosecution to establish that defendant committed the crime for which he is on trial is inadmissible under Evidence Code section 1101 because of its great propensity for prejudice to a criminal defendant. The prejudice is clear and glaring, even though such evidence is relevant, because the jury is apt to use such evidence, without more, to justify a finding that defendant committed the offense charged.

That Clover's testimony of defendant's sexual misconduct with her beginning when she was around six years of age and lasting until she was fourteen years of age was prejudicial evidence of an all-consuming nature is scarcely open to question. In my opinion, the receipt in evidence of Clover's testimony constituted reversible error, irrespective of any other contentions advanced by defendant in the case at bench. It is as true in the instant case as it was in Guerrero that ‘[h]e [defendant] deserves a new trial on relevant, nonprejudicial evidence.’ (Guerrero, supra, 16 Cal.3d 719, at p. 730, 129 Cal.Rptr. 166, at p. 172, 548 P.2d 366, at p. 372.) (Emphasis added.)

In his concurring opinion in the case at bench, Justice Kingsley takes the position that, since Kazee was a decision by another Division of this Court of Appeal, Second District, it is binding upon all Divisions of this Second District and must be followed in all future decisions of each Division of the Court of Appeal, Second District, unless the Supreme Court determines otherwise. No authority is cited for this position.

I know of no rule of law which requires us to be bound by a prior Court of Appeal decision, whether from the Second District or any other District—irrespective of our belief as to the correctness of that decision.

In Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 323, 369 P.2d 937, 939, the Supreme Court stated: ‘The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. [Citations.]’

Auto Equity Sales does not impose any duty upon the Courts of Appeal to blindly follow prior decisions of a Court of Appeal, irrespective of one's belief in their lack of persuasiveness or correctness. No such duty is imposed ragardless of what Division or District rendered the prior decision.

The doctrine of state decisis advocated by Justice Kingsley would have the effect of stifling and impeding efforts to make critical evaluations of existing legal principles in an attempt to improve the logic, reasonableness and overall soundness of our legal system and the administration of justice.

Auto Equity Sales does not define the doctrine of stare decisis in the limited manner envisioned by Justice Kingsley. Thus, the court noted that ‘[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.’ (Auto Equity Sales, supra, 57 Cal.2d 450, at p. 455, 20 Cal.Rptr. 321, at p. 323, 369 P.2d 937, at p. 939.) (Emphasis added.)

That criticism of existing law is a recognized and acceptable method for seeking to make improvements in our legal system is exemplified by the following statement from Craig v. Superior Court (1976) 54 Cal.App.3d 416, 424–425, 126 Cal.Rptr. 565, 569: ‘But it seems to be the clear policy of this state that its intermediate reviewing courts record their disagreement with existing law, . . . This policy has received its most recent expression by rule 976, California Rules of Court. That rule provides for publication of our opinions which ‘criticize existing law,’ even though they do not otherwise meet the rule's criteria for publication.' (Concurring opinion.)

I would reverse the judgment of conviction.


1.  The requested instruction read: ‘You should examine with caution the testimony of children of tender years upon with [sic] and with whom the lewd or lascivious act is alleged to have been committed.’

DUNN, Associate Justice.