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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jerrold McCULLAR, Defendant and Appellant.

Crim. F002967.

Decided: August 22, 1985

Andrew V. Alder, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gregory W. Baugher, Edmund D. McMurray and Wanda Hill Rouzan, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Defendant appeals from his conviction, following jury trial, of simple assault (Pen.Code, § 240) 1 and forcible oral copulation (§ 288a, subd. (c)).  Although defendant had been charged with using a dangerous weapon, a knife, in committing the oral copulation within the meaning of section 12022.3, the jury found this allegation not true.   Moreover, defendant's conviction of simple assault was as a necessarily included lesser offense of assault with a deadly weapon in violation of section 245, subdivision (a)(1);  the jury had acquitted defendant of the greater charge.   Defendant was sentenced to the aggravated term of eight years for his conviction of forcible oral copulation, with a concurrent term of six months for the assault conviction.

Pursuant to the recent decision of the California Supreme Court in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, we requested the parties to address the issue of whether the trial court erred in permitting the prosecution to impeach defendant's credibility by use of a 1961 conviction of statutory rape.   Since we are not persuaded that this prior conviction was one involving moral turpitude, we will reverse defendant's conviction.


On March 7, 1983, defendant and his wife, the victim herein, separated after 11 years of marriage.   Despite the separation, defendant continued to visit Mrs. McCullar and the couple's three children at Mrs. McCullar's home on almost a daily basis.   On one of these occasions Mrs. McCullar and defendant engaged in consentual sexual intercourse.   However, on March 30, Mrs. McCullar caused a restraining order to be served on defendant to keep him from her residence.

Defendant arrived at Mrs. McCullar's residence at approximately 9 p.m. on April 1.   Defendant knocked on the door and told his wife he wanted the pink slip to one of the couple's cars;  she let him in and told him it was in the folder where it was usually kept.   Defendant had difficulty locating the pink slip and became abusive, cursing Mrs. McCullar and calling her names.   However, once defendant located the document, he apologized to his wife, and the couple sat down in the living room and began talking.

At approximately 10 p.m., defendant sent the couple's daughter to bed.   Shortly thereafter, Mrs. McCullar testified defendant went into the kitchen and returned to the living room with a large butcher knife protruding, blade up, from the rear pocket of his Levis.   Defendant showed Mrs. McCullar the knife and told her if she didn't do what he was going to request, he would use it.   Defendant cornered Mrs. McCullar when she tried to escape, and she screamed at him.   The scream apparently roused the daughter, who appeared in the living room doorway;  defendant assured her everything was alright and sent her back to bed.   The child left, Mrs. McCullar returned to the chair where she had been seated, and defendant went to the couch where he laid down.

Defendant's daughter testified that when she saw her father standing “over” her mother near the wall, she observed a knife in his back pocket.   In addition to hearing her mother scream, she heard her father say, “I will leave you alone if you do what I say.”   However, at some point while defendant and Mrs. McCullar were standing near the wall, Mrs. McCullar testified defendant was holding the knife to her side, and in attempting to push the knife away, she cut her finger.

Mrs. McCullar noticed the small cut when she sat down, and she asked defendant for his handkerchief to stop the bleeding.   Defendant, who was then lying on the couch, directed his wife to orally copulate him.   Mrs. McCullar testified defendant's arm was dangling off the side of the couch, but he was still holding the knife in his hand.   Mrs. McCullar complied with defendant's demand.   Although she asked him not to, defendant ejaculated in his wife's mouth;  she spit the semen into the same handkerchief she had earlier used for the cut on her finger.

Defendant's daughter had not, in fact, returned to bed as defendant directed her to do.   Instead, she had gone to a neighbor's house where she called the sheriff's department.   When the sheriffs arrived, the house was quiet, but when Mrs. McCullar responded to their knock, she began screaming and ran from the house.   Defendant was found lying on the floor behind one of the beds in the children's bedroom and was placed under arrest.   A knife was found on the kitchen floor near the stove;  the handkerchief was taken into evidence, and it was found to contain semen and blood.

Defendant acknowledged he had visited Mrs. McCullar on the night of April 1 to retrieve the pink slip and admitted he became abusive when he couldn't find the document.   After his apology, defendant and his wife sat in the living room talking and drinking coffee.   Defendant testified his wife left the living room and returned from the kitchen with a knife, demanding defendant leave, and it was during a struggle when defendant tried to get the knife away from Mrs. McCullar that the daughter was awakened and Mrs. McCullar's finger was cut.   Defendant returned the knife to the kitchen.   Subsequently, defendant complained to Mrs. McCullar that he was lonely and asked her to masturbate him, offering her one of the couple's cars if she agreed.   She consented to perform that act and also agreed to a related act of oral copulation.

Defendant denied threatening Mrs. McCullar in any way to compel the sexual acts.   Mrs. McCullar had admitted on cross-examination that during a prior separation approximately nine months before this incident, she had fired several shots at defendant in an attempt to break up a fight between defendant and her boyfriend.


Prior to commencement of trial, defense counsel moved to exclude any reference to defendant's prior conviction in 1961 for statutory rape.   The trial court stated its opinion that all prior felony convictions were admissible following the passage of Proposition 8 and that Proposition 8 had “taken the issue of the admission of victim's [sic ] priors out of [Evidence Code section] 352.”   The court did note, however, that had the issue of defendant's approximately 21-year-old prior conviction for statutory rape arisen under the law prior to the passage of Proposition 8, under the “Beagle-Rist” rules,2 the conviction would not be admitted.   The court stated in part, “this conviction has absolutely no bearing on honesty and integrity;  that it lacked temporal propenquity [sic ] and was very remote in time;  that there was similarity between the conduct alleged here and the conduct which is the subject of that conviction;  that it would be important in this case to have the defendant's side of the story heard especially in view of the fact that there is an alleged conflict within the marriage.”

In People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court considered whether the voters intended, by enacting Proposition 8 and adding section 28 to the California Constitution, to abolish all judicial discretion to limit the use of prior convictions for purposes of impeachment or sentence enhancement.   Specifically, section 28, subdivision (f), permits the use of any prior felony conviction without limitation for purposes of impeachment or sentence enhancement;  section 28, subdivision (d), provides in part, “Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.”   The full text of section 28, subdivisions (d) and (f), appears in the margin.3  In Castro the Supreme Court held that “․ always subject to the trial court's discretion under section 352—subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.   On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.”  (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

 Thus it is clear the trial court in the instant case erred in determining it had no discretion under Evidence Code section 352 to restrict the admissibility of defendant's prior conviction for statutory rape.   More important in the instant case, however, is the fact that, under the rule of People v. Castro, supra, exercise of the trial court's discretion pursuant to Evidence Code section 352 is the second step of a two-step inquiry.   Initially when the prosecution proposes to use a prior conviction for purposes of impeachment, the trial court must determine whether the prior conviction involved moral turpitude, and in making this determination, the trial court looks only to the fact of the conviction and not to the particularized underlying facts.   As the Supreme Court stated in People v. Castro, supra, to avoid confusion of issues and unfair surprise by the introduction of extrinsic evidence on the prior, “a witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude.”  (Id., at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111, emphasis added.)   We are not persuaded that defendant's 1961 conviction for statutory rape satisfies this requirement.

 At the time of defendant's prior conviction, section 261 provided in pertinent part, “Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either [sic ] of the following circumstances:  1.   Where the female is under the age of 18 years;  ․”   Thus, at the time of defendant's conviction the least adjudicated elements of that conviction were (1) the act of sexual intercourse, (2) with a female to whom defendant was not married, and (3) when the female was under the age of 18.   Significantly, violation of the statute did not require that defendant be aware of the female's age.   It is this absence of a culpable mental state as a necessarily adjudicated element of statutory rape that persuades us defendant's prior conviction did not involve moral turpitude.

 As the Supreme Court pointed out in People v. Castro, supra, “Since impeachment with felony convictions which do not involve ‘readiness to do evil’—moral turpitude, if you will—bears no rational relationship to the witness' readiness to lie, the due process clause of the Fourteenth Amendment necessarily cuts into the ‘without limitation’ language of subdivision (f).”   (Id., at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111, fn. omitted.)   This requirement that a prior felony conviction, to be admissible for purposes of impeachment, manifest a readiness to do evil necessarily encompasses some degree of awareness on the part of the perpetrator that the conduct engaged in is, in fact, evil.   As pointed out by this court in People v. Calban (1976) 65 Cal.App.3d 578, 584, 135 Cal.Rptr. 441:

“In every crime there must exist a union or joint operation of act or conduct and criminal intent or criminal negligence.  (Pen.Code, § 20;  [further citations omitted].)  Normally, persons who commit an act through misfortune or by accident with no evil design, intention or culpable negligence are not criminally responsible for the act.  [Citation omitted.]  The only exceptions to this general rule are so-called ‘public welfare’ or ‘malum prohibitum’ crimes which are punishable despite the absence of any criminal intent or criminal negligence.  [Citations omitted.]”

See also Morissette v. United States (1952) 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, in which the Supreme Court reaffirmed as a basic premise of criminal law that there be “[a] relation between some mental element and punishment for a harmful act.”  (Id., at pp. 250–251, 72 S.Ct. at 243.)

However, in addition to the so-called public welfare offenses recognized as exceptions to the general rule in both Morissette v. United States, supra, 342 U.S. at 251, 72 S.Ct. at 243, footnote 7, and People v. Calban, supra, 65 Cal.App.3d at page 584, 135 Cal.Rptr. 441, criminal law did include a very limited number of offenses for which criminal sanctions were imposed despite the perpetrator's lack of any culpable mental state.   A well-recognized example of such a “strict liability” offense is statutory rape.   The United States Supreme Court recognized this offense as an exception to the general rule requiring a union of criminal intent and conduct, noting that “the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached the age of consent.”  (Morissette v. United States, supra, 342 U.S. at p. 251, fn. 8, 72 S.Ct. at p. 244, fn. 8, emphasis added.)   Not until 1964 did the California Supreme Court recognize as a defense to a charge of statutory rape the perpetrator's reasonable and good faith, albeit mistaken, belief that the female was at least 18 years old.   (People v. Hernandez (1964) 61 Cal.2d 529, 535–536, 39 Cal.Rptr. 361, 393 P.2d 673.)

The express basis for the Supreme Court's ruling in Hernandez was the lack of criminal intent.   A similar result was earlier reached in People v. Vogel (1956) 46 Cal.2d 798, 801, 299 P.2d 850, in which the Supreme Court used similar reasoning to conclude that a defendant was not guilty of bigamy, another traditionally “strict liability” offense, “if he had a bona fide and reasonable belief that facts existed that left him free to remarry.”   The court in Vogel stated in part, “The severe penalty imposed for bigamy, the serious loss of reputation conviction entails, the infrequency of the offense, and the fact that it has been regarded for centuries as a crime involving moral turpitude, make it extremely unlikely that the Legislature meant to include the morally innocent to make sure the guilty did not escape.”  (Id., at p. 804, 299 P.2d 850;  see also 1 Witkin, Cal. Crimes (1963) Crimes Against the Person, § 292, p. 268.)

 The court's statement of policy in People v. Vogel reinforces our opinion that a felony conviction, to constitute a crime of moral turpitude, must evidence by its least adjudicated elements the knowing readiness to do evil which manifests the union of conduct and criminal intent.   Notwithstanding recognition by the California Supreme Court in People v. Hernandez, supra, of a defense based on the perpetrator's reasonable belief that the female was over the age of consent, not only was defendant's conviction in the instant case prior to the Hernandez decision, but any criminal defense is beyond the least adjudicated element of the offense.   (People v. Zeihm (1974) 40 Cal.App.3d 1085, 1089, 115 Cal.Rptr. 528.)   Those least adjudicated elements constitute the prima facie case which must be established by the prosecutor.  (People v. Vogel, supra, 46 Cal.2d at p. 803, 299 P.2d 850.)   Thus the fact of defendant's 1961 conviction for statutory rape shows nothing more than that he engaged in an act of sexual intercourse (of which he was presumably aware), that the female involved was not his wife (also presumably a fact known to defendant), but that the female was not yet 18 years old, whether or not defendant knew of the female's minority and thus manifested some culpability, i.e., some knowing readiness to do evil, as to each of the least adjudicated elements.

We are not unmindful that the particular facts underlying a conviction for statutory rape may range from the extremely reprehensible and clearly morally bankrupt, when the female participant is young in years or in sophistication and this fact is known to an exploitive perpetrator, to the relative innocence of two teenagers believing themselves in love and succumbing to physical desires.   However, as the court made clear in People v. Castro, supra, the particularized facts are beyond our review.   We may look only to the fact of the conviction and the least adjudicated elements of the offense, and we conclude when those elements fail to manifest a readiness to do evil as we have discussed, the conviction is not one involving moral turpitude and may not be used for impeachment.   Thus in this case the first step of the inquiry required by People v. Castro, supra, was not satisfied, i.e., defendant's 1961 conviction for statutory rape was not a conviction involving moral turpitude and should not have been admitted.   Without determining that the underlying offense constitutes a crime involving moral turpitude, it is not necessary for a trial court to reach the second step of exercising its discretion in accordance with Evidence Code section 352.

 It remains for us to determine the prejudicial effect of the erroneous use of this prior conviction, and under the particular facts of this case, we believe it is reasonably probable a result more favorable to defendant would have been reached absent the error.   Although in reversing defendant's conviction on the ground discussed we need not consider one of defendant's original contentions on appeal, i.e., that the jury verdicts were inconsistent and the evidence insufficient to sustain the conviction of forcible oral copulation, we do note that the “inconsistency” of the jury verdicts in this case clearly demonstrates the jury was not wholly persuaded by the victim's testimony.   Mrs. McCullar testified that defendant not only had a butcher knife in his back pocket but drew it and pressed it to her side to force her to comply with his sexual demands.   In attempting to push the knife away, Mrs. McCullar cut her finger, and the fact of the cut was established by the introduction of the bloodied handkerchief.   Moreover, Mrs. McCullar testified that defendant kept the knife in his hand during the sex act.   However, in acquitting defendant of assault with a deadly weapon and in rejecting the knife use enhancement alleged in connection with the charge of forcible oral copulation, the jury was apparently not persuaded that defendant had assaulted his wife with a deadly weapon or used the knife to compel the sex act complained of.   We do not find the testimony of the McCullars' young daughter so corroborative of her mother's testimony that we must ignore the jury's obvious rejection of part of Mrs. McCullar's testimony and deem the evidence introduced against defendant overwhelming.  (See, e.g., People v. Bonilla (1985) 168 Cal.App.3d 201, 205–206, 214 Cal.Rptr. 191.)

Our determination that the erroneous use of defendant's prior felony conviction for statutory rape was prejudicial is made almost unavoidable by the wholly inappropriate use to which the prosecutor put this prior felony conviction in her closing argument.   In defendant's closing argument, his trial counsel understandably sought to downplay the significance of a felony occurring 20 years prior to the instant proceeding at a time when defendant was a young man;  defense counsel urged the jury not to let the evidence of that “incident so weigh upon your mind that you have to indoctrinate it into what you believe to be the evidence in this case.”   In her final rebuttal, the prosecutor argued:

“Finally, the conviction of that felony I think you need to consider not only was this defendant convicted of this felony, so was his brother, the same period of time.

“Ladies and gentlemen, I think you have to consider that when you consider his testimony, consider the nature, the sexual act, sure, it was 20 years ago.   Here he is again charged with another forced sexual act.   I need to correct that, unlawful sexual intercourse does not require force but it is a sexual act which is a crime and it is a felony.”

The addition of section 28, subdivision (f), to the California Constitution, permitting prosecutors to use prior felony convictions for the purposes of impeachment or sentence enhancement does not permit prosecutors to use those prior convictions for the improper purpose of showing disposition to commit an offense.  (Evid.Code, § 1101.)   Once this evidence is before the jury, prosecutors must be extremely vigilant to insure that their use of these prior convictions goes no further than impeachment of the defendant's credibility.   When, as here, the prosecutor exceeds this limit to argue the nature of a prior offense as probative of the defendant's guilt in the pending proceedings, the misconduct thus committed has such a high potential for prejudice it cannot be ignored.   Here, the jury's verdict indicates they believed defendant forced his estranged wife into an act of oral copulation but did not believe her testimony that the force was accompanied by use of a knife.   Thus the error in admitting evidence of defendant's prior conviction was irremediably compounded when the prosecutor, in her final argument, depicted defendant as one predisposed to commit sexual crimes.

Our determination that defendant's conviction must be reversed because of the prejudicial error in permitting his impeachment with a prior conviction for statutory rape renders it unnecessary for us to consider either of his other arguments, to wit:  (1) that the jury's verdicts were inconsistent and the evidence insufficient to sustain his conviction and (2) that a remand for resentencing is necessary for failure to consider mitigating circumstances.

The judgment is reversed.



1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.

3.   Section 28, subdivision (d), provides:“(d) Right to Truth-in-Evidence.   Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”Section 28, subdivision (f), provides:“(f) Use of Prior Convictions.   Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

THE COURT *. FN* Before HAMLIN, Acting P.J., and MARTIN and BEST, JJ.