PEOPLE v. GOTTMAN

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Ray Coates GOTTMAN, Defendant and Appellant.

Cr. 15137.

Decided: November 10, 1976

John M. Hanley, Sunnyvale (court-appointed), for defendant-appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Defendant Gottman was convicted on a jury's verdicts of (1) ‘a violation of California Penal Code Section 261, subd. 3 (Rape by threat of great bodily harm)’ in the commission of which he was armed with a deadly weapon, and (2) ‘a violation of California Penal Code Section 288a (Sex perversion)’ in the commission of which he ‘did not use force, violence, duress, menace and threat of great bodily harm.’ (Emphasis added.) One victim was the subject of both of the charged offenses, which were alleged and proved to have been committed contemporaneously. He had admitted two prior convictions of felony, i. e., assault with intent to commit rape, and burglary, second degree.

Gottman was thereafter sentenced to imprisonment in the state prison, the ‘Sentences to run concurrently; execution on [the Pen.Code, § 288a, sentence] stayed during period of appeal then become final.’

Penal Code section 288a concerns what is commonly called ‘oral copulation.’ Effective January 1, 1976, the section was amended in such a manner as to no longer proscribe such acts except under what we shall hereinafter refer to as ‘aggravated’ circumstances.1

I. As noted, on the Penal Code section 288a charge, Gottman was found to have committed an act of oral copulation, which unaggravated act, effective January 1, 1976, was no longer criminal. The offenses of which Gottman was convicted occurred July 29, 1975, and the jury's verdicts were returned November 25, 1975. The judgment of conviction, now under appeal, is not final.

It is contended by Gottman that since, by operation of law, the act of oral copulation of which he was found guilty, is no longer criminal, or punishable, his conviction of that offense must be set aside. The contention is valid, for the reasons which we now relate.

1 The 1975 amendment of Penal Code section 288a must be considered as its repeal, insofar as any portion which has been omitted from the amended statute is concerned. (Gov.Code, § 9605; Stockburger v. Jordan, 10 Cal.2d 636, 646, 76 P.2d 671; Rudley v. Tobias, 84 Cal.App.2d 454, 457, 190 P.2d 984.)

The effect of such a repealed statute, or repealed portion of a statute, is established by Government Code section 9608, which provides: ‘The termination or suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such indictment or information and punishment is expressly declared by an applicable provision of law.’

Section 9608 has been authoritatively interpreted. Subject to three exceptional situations, ‘it is the rule in this and other states, that the outright repeal of a criminal statute without a saving clause [permitting prosecution] bars prosecution for violations of the statute committed before the repeal.’ (Sekt v. Justice's Court, 26 Cal.2d 297, 304, 159 P.2d 17, 21 [cert. den., 326 U.S. 756, 66 S.Ct. 96, 90 L.Ed. 454]; and see In re Estrada, 63 Cal.2d 740, 744–748, 48 Cal.Rptr. 172, 408 P.2d 948; Spears v. County of Modoc, 101 Cal. 303, 35 P. 869.)

The three exceptions of Sekt v. Justice's Court, supra, are (1) where a statute passed after the offense mitigates its punishment, (2) ‘where a new statute is passed in a field already occupied by an older statute, the new statute will not be held to have repealed by implication the old statute as to crimes already committed at the time the new statute is passed,’ and (3) ‘where there is an outright repeal and a substantial reenactment, it will be presumed that the Legislature did not intend that there should be a remission of crimes not reduced to final judgment.’ (26 Cal.2d, pp. 305, 306, 159 P.2d p. 22.) It will be seen that none of these exceptions is here apposite; the general rule announced by Sekt v. Justice's Court, supra, is accordingly applicable.

We are unpersuaded by the People's argument that the jury's finding that in the Penal Code section 288a act Gottman ‘did not use force, violence, duress, menace and threat of great bodily harm’ should be disregarded, since the evidence conclusively established that the act was not ‘consensual.’ A jury's recorded verdict on such a factual issue in a criminal case is final, and will not be disturbed by a trial court or reviewing court. (People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911 [cert. den., 346 U.S. 827, 74 S.Ct. 47, 98 L.Ed. 352]; People v. Brown, 262 Cal.App.2d 378, 381, 68 Cal.Rptr. 657 [cert. den., 393 U.S. 1043, 89 S.Ct. 672, 21 L.Ed.2d 592].)

Nor, under the circumstances, may the jury's finding, in the conjunctive, that there was no ‘force, violence, duress, menace and threat of great bodily harm’ (emphasis added) reasonably be interpreted as a finding of one or more, but not all, of those elements. The verdict was on a form prepared by the court for the jury's convenience. It was handed to them after they had been told, by argument of counsel and instructions of the court, that they must determine whether the victim's participation in the Penal Code section 288a act was compelled ‘by force, violence, duress, menace and [or] [sic] threat of great bodily harm.’ A more reasonable interpretation is that they found none of these elements.

The verdict and judgment, insofar as they relate to Gottman's conviction on a charge of violating Penal Code section 288a will accordingly be vacated.

II. Contrary to Gottman's contention there was, beyond any doubt, substantial evidence (see People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321) in support of his conviction of rape by threats of great and immediate bodily harm. (Pen.Code, § 261, subd. 3.)

The complaining witness ‘positively’ identified Gottman as the stranger with a knife in his hand, who had somehow entered her apartment while she slept. She testified: When she first observed him the lights of the room were on and his face was partially covered with a towel; he then turned out the lights, but during the subject sexual acts, ‘all the time he was within inches of my face and I was looking into his face’; she found herself able to recognize his features. She had submitted to his sexual demands from fear of violence from the knife which he held in a threatening manner. She also reported to the police and testified that her assailant smelled of ‘outrageously strong’ cologne. A week after the incident a police officer arrested Gottman who was occupying an automobile in the parking area for tenants of the complaining witness' apartment building about 1:50 a. m. He had a strong cologne odor about him and he gave false explanations for his presence there.

The jury's finding that Gottman did not use ‘force, violence, duress, menace and threat of great bodily harm’ in relation to the Penal Code section 288a offense, does not necessarily imply, contrary to the jury's express finding, that the act of sexual intercourse of the rape charge was in fact consensual. Instead, under the circumstances of this case, it must be deemed an act of mercy. Gottman is precluded from complaining, since he probably ‘had the benefit of the jury's compassion, rather than suffering a burden because of its passion, . . .’ (People v. Smith, 117 Cal.App. 530, 534, 4 P.2d 268, 269; and see People v. Ferrel, 25 Cal.App.3d 970, 975, 102 Cal.Rptr. 372; People v. De Priest, 2 Cal.App.3d 423, 432, 82 Cal.Rptr. 526; People v. Thompson, 193 Cal.App.2d 620, 627–628, 14 Cal.Rptr. 512.) And Penal Code section 954 provides that ‘An acquittal of one or more counts shall not be deemed an acquittal of any other count.’

III. Before any evidence was taken at the trial, the court explained to the impaneled jury the concept of proof beyond a reasonable doubt. We find no fault with the explanation. However, the court, among other things, stated that proof beyond a reasonable doubt was not ‘the highest possible test,’ and then continued: ‘The highest possible test would be to prove the defendant guilty beyond any shadow of a doubt.’

Several days later, and after the jury had commenced their deliberations, they asked for ‘clarification of reasonable doubt and shadow of a doubt.’ The court properly instructed them in substantially the language of Penal Code section 1096, and then stated: ‘You made reference that you sent to me the term shadow of a doubt. To the best of my recollection, the only time that was mentioned was by me in my voir dire examination originally and I have had the reporter locate that. Do you want that read to you, Mr. Chambers [the foreman]?’ The foreman answered: ‘According to the other members of the jury, that isn't necessary to read shadow of a doubt.’ Gottman contends error.

We observe no error, at least no prejudicial error. While, as we recently suggested in People v. Garcia, 54 Cal.App.3d 61, 126 Cal.Rptr. 275 (cert. den., 426 U.S. 911, 96 S.Ct. 2238, 48 L.Ed.2d 838), trial courts would be well advised not to improvise on the traditional reasonable doubt instructions of Penal Code sections 1096 and 1096a, here the claimed error was favorable to Gottman. Such consideration, if any, as the jury may have given to the concept of proof ‘beyond any shadow of a doubt’ would have tended to cause them to apply a higher than necessary standard of proof for conviction.

IV. The remaining contention of Gottman relates to his now invalid Penal Code section 288a conviction. Its resolution has become unnecessary to our disposition of the appeal.

The superior court will modify the judgment by striking therefrom reference to Gottman's Penal Code section 288a conviction; as so modified the judgment is affirmed. Gottman's commitment to state prison will be amended to conform to the modified judgment.

FOOTNOTES

1.  Penal Code section 288a as in effect prior to January 1, 1976, provided:‘Any person participating in an act of copulating the mouth of one person with the sexual organ of another is punishable by imprisonment in the state prison for not exceeding 15 years, or by imprisonment in the county jail not to exceed one year; provided, however, whenever any person is found guilty of the offense specified herein, and it is charged and admitted or found to be true that he is more than 10 years older than his coparticipant in such an act, which coparticipant is under the age of 14, or that he has compelled the other's participation in such an act by force, violence, duress, menace, or threat of great bodily harm, he shall be punished by imprisonment in the state prison for not less than three years. The order of commitment shall expressly state whether a person convicted hereunder is more than 10 years older than his coparticipant and whether such coparticipant is under the age of 14. The order shall also state whether a person convicted hereunder has compelled coparticipation in his act by force, violence, duress, menace, or threat of great bodily harm.’Penal Code section 288a, as operative January 1, 1976, states:‘(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ of another person.‘(b) (1) Any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison for a period of not more than five years or in a county jail for a period of not more than one year.(2) Any person over the age of 21 who participates in an act of oral copulation with another person who is under 16 years of age shall be guilty of a felony.‘(c) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he, or who has compelled the participation of another person in an act of oral copulation by force, violence, duress, menace, or threat of great bodily harm, shall be punished by imprisonment in the state prison for a period not less than three years.‘(d) Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting such other person, commits an act of oral copulation by force or violence and against the will of the victim shall be punished by imprisonment in the state prison for a period of five years to life.‘(e) Any person who participates in an act of oral copulation while confined in any state prison, as defined in section 4504 or in any local detention facility as defined in section 6031.4, shall be punished by imprisonment in the state prison for a period of not more than five years, or in a county jail for a period of not more than one year.’

ELKINGTON, Associate Justice.

MOLINARI, P. J., and WEINBERGER, J.,* concur.

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