PEOPLE v. GITCHUWAY (1983)

Appellants, James Gitchuway and Rebecca Miller, were jointly charged in an eleven count information with various sexual offenses which occurred over a period of years.   Grouped according to time frames, the offenses were:  count I, lewd and lascivious conduct with a minor, (Pen.Code, § 288, subd. (a)) ¹ ;  counts II through V, oral copulation with a person under 14 and more than 10 years younger than defendants, (§ 288a, subd. (c));  and count VI, unlawful intercourse with a woman under 18, (§ 261.5), alleged to have occurred “between the dates of September 1, 1978, to May 25, 1980”;  count XI, unlawful intercourse with a woman under 18, (§ 261.5);  and counts VII through X, oral copulation with a person under the age of 16, (§ 288a, subd. (b)(2)), alleged to have occurred “between the dates of May 26, 1980 to February 18, 1981”.   Rebecca was charged as an aider and abettor in conjunction with counts II, III, VI, VII, VIII and XI:  James was charged as an aider and abettor in conjunction with counts IV, V, IX, and X.

Appellants moved to require the prosecution to select the specific acts constituting the eleven charged offenses.   The motion was denied.   The jury found them guilty as charged.

They appeal from the judgment of conviction contending it was not possible for them to defend against the eleven charged offenses in light of innumerable illicit sexual activities which were testified to by the prosecutrix as having occurred over a period of more than two years.

I.

The prosecutrix testified that while she was twelve years old James engaged with her in sexual intercourse in the presence of Rebecca and that these activities occurred “some times every other week or every week.   Some times every other day or every two days or everyday.”   As to oral copulation, the prosecutrix testified that Miller so engaged her eight times during the next year (while she was thirteen years of age).   Intercourse and oral copulation occurred “[e]very other day” in the fall of 1980—when she was fourteen—and increased in frequency when her brother left home.

II.

The doctrine of election finds its roots in two 1901 decisions of the California Supreme Court:  People v. Castro (1901) 133 Cal. 11, 65 P. 13, and People v. Williams (1901) 133 Cal. 165, 65 P. 323.   In each, although only one count of statutory rape was charged, the prosecutrix testified to more than one act of intercourse.

In the former case, the jury was instructed that if any of the acts testified to was established beyond a reasonable doubt, then it should find the defendant guilty.   The prosecutrix had testified that four separate acts of intercourse occurred over several months.   In affirming the granting of a new trial, the Supreme Court in Castro commented:  “the defendant was not called upon to defend himself against all of these respective acts of intercourse, extending through a period of several months.   The information only charged one act, and upon that allegation the case must stand or fall.   Possibly, any one of the acts sworn to by the prosecutrix could have been selected by the state as the act charged in the pleading, but the entire four acts could not be so selected.   The state, at the commencement of the trial, should have been required to select the particular act upon which it relied to make good the allegation of the information.”  (Id., 133 Cal. at p. 13, 65 P. 13.)

Even though the defendant in Castro had not demanded an election the Supreme Court required the trial court to direct the jury “in some form” to the particular act of intercourse the People must prove in order for the jury to find the defendant guilty.  (At p. 13, 65 P. 13.)

Similarly, in reversing the judgment of conviction in Williams, the Supreme Court held that the prosecution was required to elect the specific act of intercourse on which it intended to rely.   There the prosecutrix testified that over a period of four months she had engaged in sexual intercourse with defendant nearly every day, and sometimes five or six times daily.   Spelling out the problems facing the defendant the court noted:  “Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them.   The jury were not even told that they must all agree that some specifically described act had been performed.   A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge, as to any one of these separate offenses.   Even worse than that was possible.   As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted.   And how could he be defended when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried?   Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by the general designation, would be a judicial farce, if it were not something a great deal worse.”  (People v. Williams, supra, 133 Cal. at p. 168, 65 P. 323.) ²

For these reasons the Supreme Court held that “the prosecuting officer, when he commences the trial of a case of this class, where he is at liberty to prove one of several different offenses under the indictment, should at least as early as the commencement of the trial, inform the defense upon proof of what specific offense he intends to rely, and if he does not, the first evidence which would tend in any degree to prove an offense shall be deemed a selection, and unless that precise offense is proven, the defendant is entitled to an acquittal.   Even this would leave a defendant in such cases at a disadvantage, but he ought not to be tried under less favorable circumstances.”  (At p. 169, 65 P. 323.)

 An exception to the requirement of a prosecutorial election is carved out in the rare situation where a series of acts forms part of one transaction which—taken as a whole—constitutes only one offense.  (See, e.g., People v. White (1979) 89 Cal.App.3d 143, 151, 152 Cal.Rptr. 312 [pandering];  People v. Ewing (1977) 72 Cal.App.3d 714, 717, 140 Cal.Rptr. 299 [child abuse];  People v. Heideman (1976) 58 Cal.App.3d 321, 333, 130 Cal.Rptr. 349 [possession of a destructive device];  People v. Feldman (1959) 171 Cal.App.2d 15, 25, 339 P.2d 888 [concealing stolen property].)

 However, this one transaction—one offense—exception has no applicability to a situation such as the case at hand involving multiple and separately chargeable sex offenses which occur over a period of days, months or longer.  (See People v. Castro, supra, 133 Cal. at pp. 12–13, 65 P. 13 [four acts of statutory rape over several months];  People v. Williams, supra, 133 Cal. at pp. 167–169, 65 P. 323 [unlawful intercourse nearly every day over four months];  People v. Mota (1981) 115 Cal.App.3d 227, 232–233, 171 Cal.Rptr. 212 [distinguishing gang rape in a van for one hour];  People v. Alva (1979) 90 Cal.App.3d 418, 423–426, 153 Cal.Rptr. 644 [defendant charged with incest, lewd conduct and unlawful sexual intercourse, and evidence showed commission of numerous acts over six months];  People v. Foster (1931) 117 Cal.App. 439, 443–444, 4 P.2d 173 [defendant charged with unlawful intercourse, evidence showed that defendant had sexual relations with the minor over four months];  People v. Martinez (1922) 57 Cal.App. 771, 774–775, 208 P. 170 [defendant charged with unlawful intercourse, evidence showed three days of intercourse].)

 Nor does the jury instruction meet the problem or constitute the equivalent of an election.   Here the jury was instructed that it was required to unanimously agree on the act or acts constituting the charged offense in order to return a guilty verdict.  (See CALJIC No. 4.71.5.) ³  It was not told what that act or those acts were.   Thus, the instruction was not an answer to the problem pinpointed more than eighty years ago by the California Supreme Court:  when a defendant is faced with such a charge “how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried?   Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by general designation, would be a judicial farce, if it were not something a great deal worse.”  (People v. Williams, supra, 133 Cal. at p. 168, 65 P. 323.)

The instant case vividly typifies the inadequacy of the jury instruction as a cure.   Appellants were charged with one count of lewd conduct between the dates of September 1, 1978 to May 25, 1980.   The prosecutrix testified that she first had sexual intercourse with James in the fall of 1978, in the presence of Rebecca, and again about two or three weeks later.   She then stated that his intercourse occurred again while she was 12, “some times every other week or every week” and “[s]ome times every other day or every two days or everyday.”   The prosecutrix also stated that she engaged in oral copulation with Miller at least eight times during that period of time.

Because of the prosecution's failure to elect appellants were faced with defending not against a single act as charged in the information but on each count against dozens of acts occurring over a period of years, any one of which would support the charge.   A little later the jury was faced with the task of attempting to unanimously relate the verdict to one act of lewd conduct shown by the evidence.

 We understand the rationale of Castro and Williams to be nothing more complex than the simple demand of due process that an accused be advised of the charges against him so that he may have a reasonable opportunity to prepare and present his defense at trial.  (Cf. In re Hess (1955) 45 Cal.2d 171, 175, 288 P.2d 5.)   In failing to require the prosecution to specify the acts which served as the basis for the eleven offenses charged in the information the trial court failed to meet that constitutional demand.

Under the circumstances presented here it cannot be concluded that the error was harmless:  neither the trial court nor the prosecutor directed the jury to particular acts matching particular charges.   An examination of the entire record convinces us that reversal is compelled.  (Cal. Const., art. VI, § 13;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

 The judgments are reversed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   The Williams court also identified the problem of the admissibility of other sexual misconduct to prove the charged crime:  “In this case, as well as in any other, the prosecution must charge a specific offense, and the conviction, if one is had, must depend upon the proof of that offense alone.   Other incidents are important only as tending to prove the one specific offense for the alleged commission of which defendant is on trial.”  (At p. 168, 65 P. 323, emphasis in original.)

3.   CALJIC No. 4.71.5 provides:  “․ In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act [or acts] constituting said crime within the period alleged.  [¶] And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged.  [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

POCHÉ, Associate Justice.

CALDECOTT, P.J., and COOK, J.*, concur.