People v. Van De Water

California Court of Appeal Jul 15, 1980 No. Crim. 35177Published

Before: Kingsley

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Holding. The court held that evidence of prior uncharged sexual acts with other children and an adult was admissible to show a common plan, and that separate sentences for multiple sexual acts committed during the same episode are permissible.

Issues

Whether testimony regarding uncharged sexual acts with other children and an adult was admissible under Evidence Code section 1101.
Whether the trial court erred in imposing separate sentences for multiple sexual offenses committed during the same episode.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We conclude that, under the test set forth in that case, the testimony of the three other girls, and the testimony of Linda as to conduct with them was properly admitted.”

“Linda’s testimony that defendant had asked her to secure little girls for his gratification was, by itself, admissible as being an admission by defendant of his having the kind of common plan involved in Thomas.”

“where, as here, there are two separate and different acts of sexual misconduct, even though part of the same episode, both acts may be punished.”

Opinion

KINGSLEY, Acting P. J.

Defendant was charged in four counts with sexual offenses against a child under 14 on two occasions. Counts I and

[168]

III, charged commission of lewd and lascivious acts, in violation of section 288a of the Penal Code. He pled not guilty and, after a trial by the court (trial by jury having been duly waived) he was found guilty on all four counts. After a hearing as to his mentally disordered sex offender status, in which he was found not to be mentally disordered, he was sentenced to the middle term of four years on count I and one and one-third years on count II; prison sentences were also imposed on counts II and IV to run concurrent with the sentences on counts I and III. He was given 477 days presentence credit. He has appealed; we affirm.

The child victim testified that, on an occasion in January 1978, while she and her brother were living with defendant and his wife, defendant, in the presence of his wife, Linda, did acts of sexual molestation, including anal copulation. She also testified that, in May of 1978, while she and her mother were living in a motel, defendant, who was babysitting with her, again performed the same acts, but also made her urinate in his mouth.

Over objections of the defendant, the trial court permitted three other young children to testify to similar acts of molestation committed on them. It also permitted Linda to testify to conduct between defendant and her in which, inter alia, he required her to urinate in his mouth. Linda testified that, when she protested such conduct, defendant had told her that he would desist if Linda would secure little girls for his sexual pleasure. Linda confirmed the January conduct with the victim and the testimony of two of the other girls.

Defendant here contends that this testimony was inadmissible as being in violation of section 1101 of the Evidence Code.

The use of evidence of prior sex acts with girls other than the victim has been considered in several California cases. In the latest extended discussion, in

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People v. Van De Water

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