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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Henry CLEMMONS, Defendant and Appellant.

Cr. F2448.

Decided: July 31, 1984

Jeffry Glenn, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Ward A. Campbell, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.



Appellant Henry Clemmons was convicted by jury of five felonies:  three counts of lewd and lascivious acts upon a child under the age of 14 (Pen.Code, § 288, subd. (a)), and two counts of oral copulation upon a child under 14 and more than 10 years younger than appellant (Pen.Code, § 288a, subd. (c)).  The court sentenced appellant to the aggravated term of eight years in state prison on the first count, and ordered the remaining counts to run consecutively (Pen.Code, § 1170.1, subd. (a)), for an aggregate term of sixteen years.

Appellant seeks reversal of the judgment on a variety of grounds, none of which has merit.   The principal issue presented is whether the oral copulation counts must be reversed because the trial court lacked authority to permit the prosecution to reopen to prove appellant's age after appellant moved for a judgment of acquittal under Penal Code section 1118.1.   We hold the bringing of a section 1118.1 motion does not prevent the trial court from exercising its discretion under Penal Code sections 1093, subdivision 4, and 1094 to allow the prosecution to reopen, and find no abuse of discretion in this case.   The particularly sordid facts of appellant's crimes are not pertinent to analysis of this issue;  accordingly, we relegate the summary of trial evidence, as well as our discussion of the remaining, unremarkable issues, to the unpublished portion of the opinion.2

We reject each of appellant's contentions;  however, we find no published case addressing the first issue raised.

II 3


III The Court Properly Allowed the Prosecutor to Reopen to Prove Appellant's Age.

After the prosecution rested its case in chief, defense counsel moved for a judgment of acquittal on the third and fifth counts under Penal Code section 1118.1, indicating the prosecution had failed to prove either that the oral copulation was “accomplished ․ by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury,” or that appellant was more than 10 years older than the 9-year-old victim.  (See Pen.Code, § 288a, subd. (c).)  The prosecutor agreed there was no evidence of force, and stated the charges rested instead upon the age disparity.   The court pointed out appellant's age was shown in his medical records, which were in evidence.   However, examination of the records showed the date of birth to be incorrect as listed (1964 rather than 1958).   The prosecutor immediately requested to reopen to prove appellant's correct age;  defense counsel objected.

After reading and discussing authorities presented by the defense, the court granted the motion to reopen for the limited purpose of proving appellant's age.   The court on its own motion also amended the information to delete the reference to oral copulation by force.   Thereafter, the prosecutor presented testimony of appellant's mother that appellant was born on January 5, 1958, and was 24 years old at the time of the offenses.   The prosecution again rested, and the court denied appellant's Penal Code section 1118.1 motion.

Appellant argues the court had no discretion to allow the prosecutor to reopen to prove appellant's age after appellant had moved for acquittal, and therefore erred in denying the section 1118.1 motion.   Appellant's argument is based upon an unreasonable interpretation of the language and purpose of the statute.   We conclude that neither Penal Code section 1118.1 nor any pertinent case law prevents a court from exercising its discretion under sections 1093, subdivision 4, and 1094 6 to permit the prosecutor to reopen in circumstances such as these.

Penal Code section 1118.1 provides:

“In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side, and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.   If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”

The statute is founded in the fundamental policy that the prosecution has the burden to prove each element of the charge the defendant is put to his defense.  (People v. Belton (1979) 23 Cal.3d 516, 520, 153 Cal.Rptr. 195, 591 P.2d 485)  Section 1118.1 was enacted in 1967 to provide the defendant with “a procedure by which to move for acquittal when the prosecution fails to prove a prima facie case.”  (Id., at p. 521, emphasis added, 153 Cal.Rptr. 195, 591 P.2d 485.)  “The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.”  (People v. Shirley (1982) 31 Cal.3d 18, 70, 181 Cal.Rptr. 243, 641 P.2d 775.)   A judgment of acquittal upon the granting of such a motion is not appealable and bars further prosecution on the same charge.  (Pen.Code, § 1118.2.)

Appellant argues that the explicit reference in the statute to “the evidence then before the court ” compels the conclusion that the Legislature intended absolutely to preclude the prosecution from remedying deficiencies in its case after the defense makes a section 1118.1 motion.   While in isolation the quoted phrase might be construed as appellant urges, the language of the statute considered as a whole does not support this interpretation.   Reading the phrases together in a common sense manner, the court's duty to rule on the evidence which is before it arises only “at the close of the evidence”;  thus, if the court in its discretion allows the prosecution to reopen, the evidence is not yet “closed” within the meaning of the statute.  (See also current Pen.Code, § 1118, authorizing entry of a judgment of acquittal in a court trial.)

Furthermore, a construction to prevent reopening for good cause is unnecessary to further the objective of section 1118.1.   As noted above, the purpose of the statute is to enable a defendant to terminate the proceeding at the earliest possible time if the prosecution is unable to establish a prima facie case;  if the trial court finds the prosecution has not proved an essential element of the offense, the defendant need not put on a defense and the case does not go to the jury.  (People v. Belton, supra, 23 Cal.3d at pp. 520–521, 153 Cal.Rptr. 195, 591 P.2d 485;  People v. Valerio (1970) 13 Cal.App.3d 912, 920–921, 92 Cal.Rptr. 82.)   The salutary goal of promptly terminating fatally deficient prosecutions is not advanced by a rigid rule preventing the People from reopening to supply proof of an element omitted by inadvertence.

Appellant's interpretation also unreasonably limits the application of Penal Code sections 1093, subdivision 4, and 1094, which give the trial court discretion to permit either party to reopen in the interest of justice.   Under these sections, the trial court has discretion to allow the case to be reopened even after jury deliberations have begun.  (People v. Green (1980) 27 Cal.3d 1, 42, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Newton (1970) 8 Cal.App.3d 359, 383, 87 Cal.Rptr. 394.)   In People v. Carter (1957) 48 Cal.2d 737, 754–757, 312 P.2d 665, the Supreme Court found the trial court prejudicially abused its discretion in refusing to allow the defense to reopen to present newly discovered evidence tending to rebut the prosecution's circumstantial case.   The court stated that under the circumstances, the defendant's right to a fair trial “should have overcome arguments based on the notion that a criminal trial is a rigorously adversary proceeding in which a party must seize his opportunities when presented or forever lose them.”   (Id., at p. 757, 312 P.2d 665.)   The People also are entitled to a fair trial;  an absolute rule preventing reopening after a motion for acquittal would prevent a fair trial in cases such as this.

An interpretation upholding the court's discretion to allow the prosecution to reopen is consistent with California law prior to enactment of section 1118.1, and also comports with the approach taken by courts of other jurisdictions with similar statutes.   Former section 1118 (enacted in 1872, repealed by Stats.1967, ch. 256, § 1, p. 1406) authorized the trial court to advise the jury to acquit if the court deemed the evidence insufficient to warrant a conviction.   In People v. Hamil (1925) 73 Cal.App. 649, 653–654, 238 P. 1075, the court rejected a claim that it was error to permit reopening of the People's case in chief after the prosecution had rested and the defense had requested the court to advise the jury to acquit.  (See also People v. Barnes (1966) 240 Cal.App.2d 428, 435–436, 49 Cal.Rptr. 470;  People v. Kennedy (1920) 48 Cal.App. 545, 192 P. 556.)   Although the present statute authorizes the court to direct an acquittal and expressly permits the defendant as well as the court to initiate such an order, neither change removes the court's authority in a proper case to allow the prosecution to reopen.

As respondent points out, several courts in other jurisdictions with enactments similar to section 1118.1 have concluded that the making of a motion to acquit does not preclude the prosecution from reopening to supply the missing proof where the defendant does not suffer prejudice thereby.  Rule 29(a) of the Federal Rules of Criminal Procedure provides in part:

“The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.   If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.”

Federal courts have held that the substantially similar language of the rule (see People v. Belton, supra, 23 Cal.3d at p. 522, fn. 7, 153 Cal.Rptr. 195, 591 P.2d 485) does not preclude the prosecution from reopening to complete its proof after such a motion is made.  (United States v. Hinderman (10th Cir.1980) 625 F.2d 994, 996;  United States v. Sisack (9th Cir.1975) 527 F.2d 917, 919–920.)

In United States v. Hinderman, supra, 625 F.2d 994, the defendant moved for judgment of acquittal after the prosecution rested its case in chief.   The court expressed concern that the proof of venue was insufficient and granted the prosecution's request to reopen to remedy the defect before ruling on defendant's motion, which the court subsequently denied.   On appeal, the defendant argued this procedure impermissibly circumvented rule 29(a).   The court rejected this argument for reasons which are persuasive in this case:

“Ordinarily, the trial court is vested with wide discretion to permit the reopening of either party's case.  [Citation.]  We hold that the rule is no different in the specific context presented here.  Rule 29(a), as it concerns a motion for acquittal at the close of the prosecution's case, implements the ‘requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense.’   [Citation.]  Thus, the government's case-in-chief should not be treated as an experiment that can be cured after the defendant has, by motion, identified the failures.   But the trial court must be vested with discretion to permit reopening when mere inadvertence or some other compelling circumstance, such as that involved in this case, justifies a reopening and no substantial prejudice will occur.   If the court in the exercise of cautious discretion allows the prosecution to reopen its case before the defendant begins its defense, that reopening does not violate either the rules of criminal procedure or the defendant's right not to be put twice in jeopardy.  [Citations.]  Here the prosecution's failure to adequately prove venue was clearly inadvertent, and defendant suffered no prejudice or surprise.   We therefore conclude that the trial court did not err.”  (Id., at p. 996.)

A Massachusetts case, Commonwealth v. Cote (1983) 15 Mass.App. 229, 444 N.E.2d 1282, also considered and rejected an argument similar to appellant's in a trial where the prosecution was allowed to reopen to prove lack of consent by the company to defendant's use of unmetered gas.   The applicable Massachusetts rule of criminal procedure provides that “ ‘[i]f a defendant's motion for a required finding of not guilty is made at the close of the Commonwealth's evidence, it shall be ruled upon at that time.’ ”   The court noted that

“[t]he literal language of the rule ․ protects a defendant's right to insist that the Commonwealth present proof of every element of the crime with which he is charged before he decides whether to rest or to introduce proof in a contradiction or exoneration.”  (444 N.E.2d, at pp. 1289–1290.)

Citing United States v. Hinderman, supra, 625 F.2d 994, the court held the Massachusetts rule's prohibition against reserving decision on the motion when brought at the conclusion of the prosecution's case does not abridge the court's discretion to allow reopening for good cause.   In Cote, the prosecution's omission resulted from “a good faith belief that the initial burden of production [on the issue of lack of consent] lay with the defendant, an issue of some legal complexity,” and the reviewing court found defendant suffered no prejudice;  accordingly, the trial court's exercise of discretion was upheld.  (Commonwealth v. Cote, supra, 15 Mass.App. at pp. 241–243, 444 N.E.2d at pp. 1290–1291;  see also Dees v. State (Fla.App.1978) 357 So.2d 491;  State v. Cota (1965) 99 Ariz. 237, 408 P.2d 27, cert. den., 383 U.S. 929, 86 S.Ct. 937, 15 L.Ed.2d 848.)

Although appellant seeks to distinguish these out-of-state authorities on the basis of variations in the language of the statutes authorizing motions for acquittal, the distinctions are without substance.   In each case, the objective of the statute is the same and, as discussed above, the language of section 1118.1 requiring the court to rule upon “the evidence then before the court,” does not compel a different result.

Appellant relies upon language in People v. Martinez (1982) 132 Cal.App.3d 119, 129–130, 183 Cal.Rptr. 256, suggesting the trial court should be precluded from allowing the prosecution to reopen after a section 1118 7 motion.   This discussion is pure dicta and we cannot agree with the suggestion.

In Martinez, the defense made an ambiguous motion to dismiss at the close of the prosecution case “ ‘on the grounds there is no direct evidence that [defendant] committed any robberies at all.   At best, there is circumstantial evidence ․’ ”  Defense counsel admitted that the testimony of a coparticipant, Heath, supplied direct evidence defendant was possession of stolen property, but argued dismissal was required on the theory that any inferences from circumstantial evidence must be drawn in the defendant's favor.  (Id., at p. 127, 183 Cal.Rptr. 256.)   On appeal, the defendant claimed error in the denial of the section 1118 motion on the ground Heath was an accomplice whose testimony was uncorroborated.   The reviewing court agreed and reversed the counts resting on this testimony, first holding that the form and content of the motion was sufficient under People v. Belton, supra, 23 Cal.3d 516, 153 Cal.Rptr. 195, 591 P.2d 485.  (People v. Martinez, supra, 132 Cal.App.3d at pp. 127–133, 183 Cal.Rptr. 256.)

Noting defense counsel's motion in Martinez actually directed the trial court's attention away from the accomplice problem, the majority urged the Supreme Court to reconsider its ruling in Belton that the defense need not specify grounds for a motion to acquit, and offered the following solution:

“A major concern in Belton was that if a defendant were required to specify the defects in the prosecution's case, the prosecutor would be afforded the opportunity to reopen the case in order to cure the defects.  (23 Cal.3d at p. 521, 153 Cal.Rptr. 195, 591 P.2d 485.)   The thought occurs to us that rather than deprive the trial court of specification of reasons for the motion, a simpler solution, equally fair to the defendant, would be to require the defendant to specify reasons for the motion but deny the People the right to reopen for any reason so specified.   In this manner the trial court would be alerted to the issues presented, avoiding sua sponte omniscience and the sandbagging effect of a diversionary argument.   Obviously there may be other solutions to this difficult problem.   Whatever the solution, there should be a better procedural technique to deal with this issue in order to avoid the injustice resulting in this case where the practical effect of defense counsel's argument was to prohibit trial court consideration of the question so thoroughly briefed and argued in this appeal.”  (People v. Martinez, supra, 132 Cal.App.3d at pp. 129–130, 183 Cal.Rptr. 256.)

We believe this discussion misreads Belton and places too much importance on the trial judge's track record.8  The concern of Belton was to interpret sections 1118 and 1118.1 in accordance with the underlying rights of the defendant to the presumption of innocence and proof beyond a reasonable doubt.   Thus, the Supreme Court emphasized the authority of the trial court to acquit on its own motion, and further held the defendant should not be compelled to point out specific problems in the People's case.   (People v. Belton, supra, 23 Cal.3d at pp. 520–522, 153 Cal.Rptr. 195, 591 P.2d 485.)

Under Belton, defense counsel's approach to a motion for acquittal obviously involves tactical decisions.   If the defense chooses to take advantage of the provisions of section 1118.1 to test the sufficiency of the prosecution's evidence at the earliest possible time, it need not specify grounds;  however, if it does not do so, it runs the risk that in some instances the trial judge will incorrectly deny the motion through oversight (rather than incorrect legal analysis), thus defeating the purpose of the statutory procedure.   However, the defense has no ground for complaint if the court in the exercise of sound discretion permits the prosecution to make up an evidentiary deficiency, whether or not the motion to acquit specifies grounds:  the purpose of the procedure is to terminate fatally deficient prosecutions promptly, not to provide one side with a tactical trap.

 We hold the court had the authority to order the case reopened after appellant's section 1118.1 motion, and further find the judge's ruling in this case was not an abuse of discretion.   This is not a case where the prosecution purposely withheld part of its case in chief in order to surprise the defense or gain some tactical advantage.  (Compare People v. Carter, supra, 48 Cal.2d 737, 753–754, 312 P.2d 665, with People v. Avery (1950) 35 Cal.2d 487, 491, 218 P.2d 527.)   Here, the omission to prove appellant's age obviously was inadvertent.   Furthermore, the fact proved was not the type of evidence the defense might require an opportunity to prepare to meet;  there was no dispute that appellant was 24 years old.   The only prejudice appellant can claim is that presentation of this evidence prevented the granting of his section 1118.1 motion.   Under these circumstances, the court did not abuse its discretion in allowing the prosecution to reopen.



The conviction of oral copulation in the fifth count is reversed for insufficiency of the evidence as conceded by respondent.  (See ante, fn. 2.)   The judgment as to the remaining counts is affirmed.   The trial court is directed to modify the abstract of judgment by striking the conviction and two-year consecutive term imposed in the fifth count and to forward a certified corrected copy to the proper authorities.


2.   Although appellant does not challenge the sufficiency of the evidence to support the convictions, our reading of the victim's trial testimony reveals evidence of only one incident of oral copulation, and respondent concedes only one count of violation of Penal Code section 288a, subdivision (c) (the third count) was proved.   Accordingly, we reverse the conviction in the fifth count.

3.   See footnote 1, ante.

6.   Penal Code section 1093, subdivision 4, provides that following presentation of the prosecution's case in chief and the defense, “The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case.”   Section 1094 authorizes the trial court to vary the order of proof “․ for good reasons, and in the sound discretion of the Court, ․”  (See also Evid.Code, § 320.)

7.   Section 1118 provides:  “In a case tried by the court without a jury ․, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses.   If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”

8.   In Martinez, the only conceivable injustice was not the “sandbagging” of the trial judge, but rather the delay in proper resolution of the acquittal motion resulting from the trial court's failure to recognize the lack of corroborative evidence.

9.   See footnote 1, ante.

PAULINE DAVIS HANSON, Associate Justice.

FRANSON, Acting P.J., and VAN AUKEN, J.*, concur.