PEOPLE v. GOLDSTEIN

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

The PEOPLE, Plaintiff and Respondent, v. Darryl L. GOLDSTEIN, Defendant and Appellant.

Cr. 21316.

Decided: December 08, 1981

Geoffrey Rotwein, San Francisco (under appointment), for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Gloria F. DeHart, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

On a jury's verdicts defendant Darryl L. Goldstein was found guilty of perpetrating 17 counts of felony against 3 victims, including the crimes of false imprisonment effected by violence (Pen.Code, ss 236, 237), inducing a minor to use a narcotic drug (Health & Saf.Code, s 11353) and marijuana (Health & Saf.Code, s 11361), administering a narcotic to another to enable himself to commit a felony (Pen.Code, s 222), oral copulation by means of force (Pen.Code, s 288a, subd. (c)), attempted sodomy by means of force (Pen.Code, ss 664, 286, subd. (c)), and assault with intent to commit sodomy (Pen.Code, ss 220, 286). He appeals from the judgment which was entered upon the verdicts.

We set forth the several appellate contentions as phrased, and in the order stated, by Goldstein.

I. Contention: “The trial court erred by refusing to permit defense counsel to withdraw and to substitute new defense counsel, or in the alternative, the trial court erred by refusing to permit defense counsel to testify on behalf of appellant.”

On the afternoon of the trial's commencement, Goldstein's attorney was informed that a material witness, expected to testify for the defense, had recanted his promised testimony and indicated he would testify for the prosecution. The attorney stated to the court that if the witness so testified he, the attorney, would be obliged himself to testify to prior inconsistent statements of the witness, and other impeaching matter. He then moved to “be relieved as counsel of record because I am a prospective witness if he is called as a witness for the prosecution.” The trial court denied the motion, and the trial proceeded.

The witness did thereafter testify damagingly on behalf of the prosecution. At the conclusion of his testimony, the following discussion took place between the court and counsel: “(Defense Counsel:) ... Your Honor, I would just like to put on the record that in chambers, not on the record, prior to coming out this afternoon, I asked permission to take the stand as a witness, as a defense witness, and you indicated that you would deny that request. The Court: That's right. That was the extent of the conversation that we had, too. That was the extent of the conversation; that you said you would like to take the stand as a witness and you asked me if you could and I said no. (Defense Counsel:) I would like to make the request now. The Court: You already made it and I have already denied it and you made the record.”

The instant claims of error arise from the above proceedings.

We perceive no abuse of discretion in the trial court's first ruling, denying defense counsel's motion to “be relieved as counsel of record because I am a prospective witness if he is called as a witness for the prosecution.”

The motion was based upon the speculation that the witness might be called by the prosecution. Witnesses had been subpoenaed and a panel of jurors were awaiting voir dire. The court stated that already “this case has a history of delays that are caused by the defendant as counsel.” (Sic.) Granting the motion would necessarily result in an extended continuance, and further delay while another attorney familiarized himself with Goldstein's case. Such a result was at odds with the public policy expressed by Penal Code section 1050. And: “The granting or denial of a motion for a continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction.” (People v. Laursen, 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, 501 P.2d 1145 (cert. den., 412 U.S. 915, 93 S.Ct. 2738, 37 L.Ed.2d 142).)

But we view the second of the criticized rulings made after the witness had testified, that defense counsel might not give impeaching testimony, differently.

It is first noted that, according to defense counsel's offer, he would testify to prior inconsistent statements of a material witness against Goldstein. It was relevant testimony tending in reason to disprove the disputed fact of his client's guilt. Such evidence is admissible when, as here, it is otherwise not barred by law. (Evid.Code, ss 210, 351.) The right to produce legally admissible relevant evidence in defense of a criminal charge is one of the “basic ingredients of due process of law.” (Emphasis added; Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019.) It is “fundamental to the fair administration of American justice” and “due process of law” that “a criminal charge may be answered” by “the calling and interrogation of favorable witnesses, ...” (Emphasis added; Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562.)

(Parenthetically, we here observe, and emphasize, that we are not concerned on this appeal with an actual, or potential, conflict of interest between an attorney and his client, or between an attorney and a former client who had become an adversary witness. Instead the case involves only an attorney who, without fault or purpose on his part, after a trial's commencement found it to be in his client's interest that he testify on the client's behalf.)

It is a judicially noted truism that: “An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.” (Comden v. Superior Court, 20 Cal.3d 906, 912, 145 Cal.Rptr. 9, 576 P.2d 971 (cert. den., 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 652).) And there has developed the principle that an attorney who knows, or ought to know, that he should be a material witness at a trial, will ordinarily be obliged to arrange for other counsel to try the case. Lesser reasons are to avoid the “appearance of ... impropriety” (Comden v. Superior Court, supra, p. 912, 145 Cal.Rptr. 9, 576 P.2d 971), and to “ ‘ ”ensure that the (bar's) standards of ethics remain high“ ‘ ” (Harris v. Superior Court, 97 Cal.App.3d 488, 493, 158 Cal.Rptr. 807). But its principal purpose, as noted, is to protect the client from his attorney's “impaired credibility” and “ineffective advocacy.” (Comden v. Superior Court, supra, 20 Cal.3d p. 912, 145 Cal.Rptr. 9, 576 P.2d 971.)

“(T)he rule is not intended to personally benefit (the) other party, or to aid counsel for such other party.” (Comden v. Superior Court, supra, 20 Cal.3d 906, 915, fn. 3, 145 Cal.Rptr. 9, 576 P.2d 971.) “Indeed, ... the adversary party will ordinarily be benefited in such circumstances, for (as noted) an ‘attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.’ ” (Harris v. Superior Court, supra, 97 Cal.App.3d 488, 493, 158 Cal.Rptr. 807.) “Thus, (it) is not a rule proscribing deceptive, dishonest, immoral or even unethical conduct in the true sense; it is, rather, a rule of professional propriety or etiquette resulting from the balancing of a number of competing interests ....” (People ex rel. Younger v. Superior Court, 86 Cal.App.3d 180, 201, 150 Cal.Rptr. 156.) “The ultimate issue ‘involves a conflict between a client's right to counsel of his choice and the need to maintain ethical standards of professional responsibility.’ ” (Harris v. Superior Court, supra, 97 Cal.App.3d p. 493, 158 Cal.Rptr. 807.)

Rule 2-111(A)(4) of the California State Bar Rules of Professional Conduct has codified the rationale as follows: “If upon or after undertaking employment, a member of the State Bar knows or should know that the member ought to be called as a witness on behalf of the member's client in litigation concerning the subject matter of such employment, the member may continue employment only with the written consent of the client given after the client has been fully advised regarding the possible implications of such dual role as to the outcome of the client's cause and has had a reasonable opportunity to seek the advice of independent counsel on the matter.” It will be seen that no public interest prevents the attorney from being a material witness, if it be with the informed and intelligent consent of his client. Here there can be no doubt that counsel's expressed desire to testify was with such consent of his client, Goldstein.

And finally we note language of the dissent of a closely divided (4-3) court in Comden v. Superior Court, supra, concerning which the majority expressed no disagreement: “(R)eason suggests that if a party is willing to accept less effective counsel because of the attorney's testifying, neither his opponent nor the trial court should be able to assert this choice against the party without clear evidence of detriment to the opponent or injury to the integrity of the judicial process.” (20 Cal.3d, p. 918, 145 Cal.Rptr. 9, 576 P.2d 971.) This rationale was in strict accord with the court's majority holding that the value or weight of the attorney's testimony be considered, that “substantial hardship” to the client be avoided, and that the “client's interests” be protected.

By virtue of the foregoing, we find error of constitutional dimension.

Nevertheless, we inquire whether the error was “harmless beyond a reasonable doubt” according to the criterion of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

We observe that at the conclusion of the recanting witness' direct testimony he was broadly cross-examined by Goldstein's attorney. During its course, the witness admitted the prior inconsistent statements that the attorney wished to establish by his own testimony. Furthermore, testimony such as the following was elicited: “Q. Did you ever ask me whether I was going to help you in your case in any way? A. No.... Q. And I told you that it was very important that you tell the truth in this case, didn't I? A. Oh, yes. Q. And I was very concerned about the fact that you tell the truth before the jury, wasn't I? A. Yes, because I was, I was going to tell the truth.” “Q. You told me that; you were lying when you were telling me that? A. No, I didn't tell you I was lying. I told you that I had been to his house and everything. I didn't tell you that I was lying. Q. You told me the entire story that you just told on direct, didn't you? ... A. Yes. Q. Did you ever imply or indicate or try to hint to me in any way that it was a lie? A. No, I didn't.... Q. Did you indicate an interest, a willingness, a desire to testify in Mr. Goldstein's trial? A. Yes, I was willing; yes. Q. Were you interested? A. At the time.”

We find the evidence of Goldstein's guilt of the charges concerning which the witness testified to be strong, and that the attorney's testimony would bring his client no benefit beyond that already elicited on the witness' cross-examination. Our conclusion is that the error we have found was harmless, beyond a reasonable doubt.

II. Contention: “The trial court committed a prejudicial abuse of discretion by refusing to strike evidence of another uncharged incident of sexual attack by appellant, and by failing to instruct the jury sua sponte as to the cautionary instructions under CALJIC 2.50 and 10.36.”

A police officer had testified in respect of the charges concerning a complaining witness who was a minor. On cross-examination defense counsel endeavored to develop a theory that the officer had confused that offense with an uncharged offense of which one Arnett was the complainant. On redirect examination, over objection, the prosecution was permitted to adduce testimony in respect of the Arnett complaint, thus to establish that the two cases were not confused.

Thereafter, out of the jury's presence, defense counsel moved for a mistrial because of the evidence's allowance. Upon the prosecutor's further explanation of the evidentiary purpose Goldstein responded: “If that was the purpose for the district attorney bringing out the information pertaining to Mr. Arnett in view of the fact that Sergeant Long said ‘no, I did not confuse the two,’ I would ask tomorrow morning that the court instruct the jury to disregard any reference that was brought out by Sergeant Long pertaining to the witness Arnett in view of the fact that he testified that he did not confuse (the minor) and Arnett, and that was the purpose in the district attorney bringing up that information. I would ask for an admonition instruction to disregard any testimony pertaining to Arnett.”

Defense counsel thereupon prepared an instruction which was read by the trial court to the jury the following morning, as follows:

“Now, ladies and gentlemen of the jury, during yesterday's proceedings the district attorney in the redirect examination of Sergeant Long, who is just leaving, asked questions of the sergeant pertaining to certain information contained in a police report which he identified as being the second page, the copy of the second page of a report that he had made. And questions concerning what was in that report were directed to the sergeant referable to the name of James Arnett. I want to instruct you at this time that testimony is stricken. In other words, you heard something. Now I am telling you you heard it, forget it, disregard it. It is not evidence in this case. It is not to be considered by you in any way; that information with reference to James Arnett that was discussed relative to the police report in the redirect examination.”

We are of the opinion that this “admonitory” instruction effectively granted Goldstein's motion to “strike evidence of another uncharged incident,” and that assuming error, arguendo, it was manifestly cured by the trial court's instruction.

The related contention of erroneous failure to give, sua sponte, the additional cautionary instructions of CALJIC Nos. 2.50 and 10.36 patently lacks merit, because of the giving of the instruction prepared by defense counsel.

III. Contention: “There is no offense of ‘attempted sodomy’ in California.''

Sodomy accomplished against the victim's will by means of force is a crime denounced by Penal Code section 286, subdivision (c), which is punishable by imprisonment in the state prison for three, six or eight years. And Penal Code section 664 provides: “Every person who attempts to commit any crime (such as sodomy by force), ... is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted; ...”

No merit is discerned in Goldstein's argument that although a punishment is fixed for attempted sodomy, the crime itself is not defined. “Sodomy” and “attempt” are words of common understanding. (See Webster's New Internat. Dict. (3d ed. 1971) pp. 140, 2165.) “To comply with the constitutional requirement of due process of law, the crime for which defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those persons within its purview to understand and correctly apply them.” (People v. Nunn, 46 Cal.2d 460, 467, 296 P.2d 813 (cert. den., 352 U.S. 883, 77 S.Ct. 126, 1 L.Ed.2d 82).) And, “in order for a statute to comply with constitutional requirements, ‘... ”... it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.“ ‘ ” (People v. Blake, 179 Cal.App.2d 246, 251-252, 3 Cal.Rptr. 749 (disapproved on other grounds, People v. Jackson, 59 Cal.2d 468, 470, 30 Cal.Rptr. 329, 381 P.2d 1).)

It is true, as said in People v. Buffum, 40 Cal.2d 709, 718, 256 P.2d 317, that: “Sections 663 and 664 of the Penal Code prescribe punishment for attempts to commit crimes but do not define the offense.” But here those statutes and Penal Code section 286, subdivision (c), do define the crime at issue.

Further, we note that convictions for attempt to commit sodomy have repeatedly been upheld. (See People v. Oates, 142 Cal. 12, 14, 75 P. 337; People v. Featherstone, 67 Cal.App.2d 793, 795, 155 P.2d 685; People v. Jensen, 76 Cal.App. 558, 559-561, 244 P. 1086; People v. Erwin, 4 Cal.App. 394, 396, 88 P. 371.)

IV. Contention: “The trial court erred by refusing appellant's requested jury instruction pertaining to the defense of reasonable belief that the victim-minors were adults.”

In narcotic offenses such as here at issue, “defendant's claimed ignorance of the age of (the person induced to use a narcotic is) not a defense at all under (the) statute.” (People v. Lopez, 271 Cal.App.2d 754, 760, 77 Cal.Rptr. 59 (cert. den., 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234).) A distinction will reasonably be made between acts not criminal where the affected person is an adult, and acts, as here, which are criminal whether the victim is a minor or an adult. In relation to a nearly identical statute the Lopez court held: “There is nothing in the acts of the Legislature to indicate that Health and Safety Code section 11532 applies only when the offender knows he is dealing with a minor. Under the preceding section 11531 it is a felony to offer or furnish marijuana to anyone; and section 11532 simply provides greater punishment when the offeree is a minor. As a general proposition, it has been said that a mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed.” (Pp. 760-761, 77 Cal.Rptr. 59; fn. omitted.) The rule of Lopez will be applied here. The instruction was properly refused by the trial court.

V. Contention: “The court erred in its instruction pertaining to unlawfully administering a narcotic with the intent to commit the felony of forcible oral copulation, pursuant to Penal Code, section 222.”

It is first argued that the jury should have been instructed that the subject narcotic must have been administered “ ‘wilfully and unlawfully.’ ” Here under the evidence, such administration, if done at all, was done wilfully and unlawfully. Instructions need not be given when reasonably not required by the evidence. “Jury instructions must be responsive to the issues, which in a criminal case, are determined by the evidence ....” (People v. Preston, 9 Cal.3d 308, 319, 107 Cal.Rptr. 300, 508 P.2d 300.) “The court is never required to give any instructions that would have no foundation in the evidence or in any theory on which the case was tried.” (People v. Brunt, 24 Cal.App.3d 945, 955-956, 101 P.2d 457.)

The second of the instant contentions, unsupported by authority, is that the following instruction was erroneous: “The defendant is charged with violation of section 222 of the Penal Code in counts 5, 10 and 15 with administering an intoxicating agent to another with the intent to aid himself, the defendant, to commit a felony, forcible oral copulation. Every person who administers to another any narcotic or intoxicating agent, alcohol, with the specific intent to enable himself to commit a felony, is guilty of a crime in violation of section 222 of the Penal Code. The counts involved were 5, 10 and 15.” We find no fault with it.

VI. Contention: “The court committed a prejudicial abuse of discretion by failing to grant appellant's petition as a mentally disturbed sex offender under Welfare & Institutions Code, sections 6300, et seq.”

Whether mentally disordered sex offender proceedings should be commenced following one's conviction of a sex offense is, as conceded by Goldstein, confided to the sound discretion of the trial court. Welfare and Institutions Code section 6302, subdivision (a), provides that upon such a conviction the court “may” adjourn the criminal proceedings and “may” thereafter certify the person for hearing and examination whether he “is a mentally disordered sex offender ....”

It is held that the trial court may in its discretion reject such mentally disordered sex offender proceedings where there is no medical or psychiatric evidence of sexual psychopathy (People v. Westbrook, 62 Cal.2d 197, 205-206, 41 Cal.Rptr. 809, 397 P.2d 545; People v. Barnett, 27 Cal.2d 649, 657, 166 P.2d 4), or there appears to be no realistic chance of successful treatment as a mentally disordered sex offender (People v. Vallez, 80 Cal.App.3d 46, 57, 143 P.2d 914), or there is only the accused's expressed belief that he is such an offender (People v. Smith, 100 Cal.App.2d 162, 165-166, 223 P.2d 82), or where the court reasonably concludes that appropriate treatment would be available within the more secure state prison system (People v. Preciado, 116 Cal.App.3d 409, 412, 172 Cal.Rptr. 107). And the use of the word “may” in the statute has been declared significant and meaningful in determining the legislative intent. (People v. Haley, 46 Cal.App.2d 618, 623-624, 116 P.2d 498.)

Under these several criteria we find no abuse of discretion.

VII. Contention: “Appellant should be given his good time/work time credits.”

Goldstein will be allowed any presentence conduct credits to which he may be entitled, according to People v. Sage, 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, and People v. McMillan, 110 Cal.App.3d 682, 167 Cal.Rptr. 924, by the Department of Corrections.

VIII. Following the briefing of this appeal, Goldstein sought and was granted permission to file a supplemental brief based upon what he calls Madden (People v. Madden, 116 Cal.App.3d 212, 171 Cal.Rptr. 897, passim) error.

He argues that while the information charged single criminal acts, the evidence was supportive of findings that several such described acts were committed. He urges that, as in Madden, the jury may not have been unanimous as to the commission of any single act. Madden holds that under such circumstances the jury should have been instructed that they must unanimously agree on the defendant's guilt as to at least one such act.

We are first advised: “For example, as to (a minor complaining witness), there was testimony that Appellant photographed one act of oral copulation, and that thereafter other act(s) of oral copulation occurred. See R.T. 57-59, as pertaining to Count VI. As to the charge of attempted sodomy under Count VIII, there was testimony that numerous attempts during a two day period occurred. See R.T. 59:6-12, 61:14-17, 62:6-8, and 63-65.” Our examination of the adverted to portions of the reporter's transcript reasonably indicates two such acts of oral copulation, as was charged in count VI. But the record references as to count VIII may, in our opinion, only be read as evidence that one act of attempted sodomy was committed.

Goldstein then states: “As to Jerry (another minor complaining witness), and the charge of assault with intent to commit sodomy under Count XVIII, there was testimony that more than one assault occurred. See R.T. 265-270, specifically 266:27-267:9 and 268:11-270:21.” Our close examination of the record references, although suggestive of other deviate sexual activity, reasonably indicates the commission of but one assault with intent to commit sodomy, as charged in count XVIII.

Goldstein makes no “appropriate reference to the record,” as required by rule 15(a), California Rules of Court, in support of other such contentions, and we ourselves have found no record support for them.

From the foregoing, it appears that Goldstein's conviction of forcible oral copulation (Pen.Code, s 288a, subd. (c)), as charged in count VI is tainted with Madden error. Since the instruction required by Madden was “necessary for the jury's understanding of the case” (116 Cal.App.3d, p. 215, 171 Cal.Rptr. 897), failure to so “instruct sua sponte on the necessity of agreement of the jurors was error” (id., p. 219, 171 Cal.Rptr. 897) and such error requires reversal with respect to the charge of count VI.

The judgment is affirmed except as to Goldstein's conviction on the charge of count VI; as to count VI, it is reversed. The Department of Corrections will allow Goldstein any presentence conduct credits to which he may be entitled, according to People v. Sage, 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, and People v. McMillan, 110 Cal.App.3d 682, 167 Cal.Rptr. 924.

ELKINGTON, Acting Presiding Justice.

GRODIN and RAGAN,* JJ., concur.