People v. Zabel

California Court of Appeal Jan 4, 1950 No. Crim. 2629Published

Before: Dooling

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Holding. The court held that evidence of similar prior acts is admissible to prove criminal intent when a defendant claims that any physical contact was accidental. It further held that jury instructions regarding the requirement of a unanimous verdict were proper and not coercive.

Issues

Whether evidence of similar prior acts is admissible to prove intent when a defendant claims accidental contact.
Whether the trial court's instruction on the requirement of a unanimous verdict was coercive.
Whether the trial court erred in failing to instruct on included offenses when none were requested.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence was properly admitted under the rule that evidence of similar crimes, while ordinarily not admissible, may be admitted to prove intent where that is an issue and the criminal intent is denied by the defendant.”

“The jury must be accorded the usual amount of common sense and common knowledge and cannot have understood from this instruction, as defendant contends, that they were being directed that it was their duty to agree.”

DOOLING, J.

Defendant was convicted by a jury of a violation of Penal Code section 288 alleged to have been committed upon the person of an 11-year-old girl. The complaining witness testified that while she was sleeping in defendant’s home with one of his stepdaughters defendant came into the room and placed his hand upon her genitals. Defendant denied this, his testimony being that he noticed the little girl uncovered and replaced the bed coverings over her without touching her body. On cross-examination defendant stated that he might have touched her shoulder in placing the covers over her. Later, on being shown a written statement previously given to the district attorney, in which defendant had stated: “I was a little unsteady in my feet. I lost my balance. In putting my hand down to steady myself I came in contact with the . . . girl on her breast,” he repeated: “I was a little unsteady on my feet and I might have touched her on the shoulder. ’ ’

The tenor of defendant’s testimony was that he might have touched the child’s body but if he did so it was an accident and not done deliberately or with lustful intent. This opened the door to the evidence of which defendant complains on appeal. The People produced in rebuttal the two stepdaughters of defendant who testified to recurring acts of intimacy committed by defendant on their persons, and also introduced his written statement in which defendant acknowledged similar acts with his stepdaughters. The trial court admitted this evidence for the limited purpose of showing the intent

[488]

with which defendant touched the person of the complaining witness if the jury found that he did so, and the jury was explicitly instructed on the limited purpose for which this evidence should be considered.

The evidence was properly admitted under the rule that evidence of similar crimes, while ordinarily not admissible, may be admitted to prove intent where that is an issue and the criminal intent is denied by the defendant.

(People

Williams,

6 Cal.2d 500 [58 P.2d 917];

People

People v. Zabel

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DOOLING, J.

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