Opinion
KINGSLEY, Acting P. J. J.— Defendant was charged with: (count I) unlawful sexual intercourse with Loren L., a female under the age of 18 years, in violation of section 261.5 of the Penal Code; (count II) commission of a lewd and lascivious act upon Loren L., a child under the age of 14 years, between October 6, 1972, and October 6, 1973, in violation of section .288 of the Penal Code; and (count III), unlawful sexual intercourse between August 6, 1971 and May 6, 1972, with Catherine L., a child under the age of 18 years, in violation of section 261.5 of the Penal Code. Under circumstances hereinafter discussed, count III was stricken by the court on the ground that prosecution for the offense therein charged was barred by the statute of limitations. After a jury trial, defendant was found not guilty on count I, but guilty on count II. He was granted probation; he has appealed; we reverse.
[317]Facts
Defendant became acquainted with Joan L., the mother of the two girls herein involved, after Joan’s divorce in 1969. Thereafter he had sexual relations with her and became a regular guest at Joan’s home. He came to know all three of Joan’s daughters and became somewhat of a father image to them. He would babysit the children on occasion. The defendant entered medical school in Mexico and spent most of the time out of the country from 1971 through 1974. When at home on vacations he spent considerable time at the L. home.
On July 31, 1974, William Henderson, a boyfriend of Catherine, was at the L. home. Prior to this date there had been an altercation in which the defendant had thrown Henderson out of the L. home. That night Henderson heard noises coming from the family room that he believed to be the defendant and Loren having sexual intercourse. He told Mrs. L. that he believed something was going on between the defendant and Loren. This was done early on August 1, 1974, (sometime between midnight and 3 a.m.) at Torrance Memorial Hospital where Mrs. L. was working. That morning, after returning home from work, Mrs. L. confronted Loren, who at first denied any sexual activity with the defendant but soon changed her story and said she had had sex numerous times with him including the night before. Mrs. L. called the police who sent Deputy Sheriff Evelyn Forbes to the L. home where Loren repeated her story. Deputy Forbes took Loren to Torrance Memorial Hospital for a pelvic examination. Sometime thereafter Mrs. L. asked Cathy whether she had ever “made love” with the defendant. Cathy said “yes,” but had had no sexual relations in over two years.
The defendant was charged with three counts. One count, based on his alleged relations with Cathy, the oldest daughter, was dropped because of the statute of limitations after one day of testimony by Mrs. L. and Cathy. Defense counsel objected to Catherine’s testimony and moved for a mistrial which was denied. Her testimony was allowed to continue. Dr. Eugene Carpenter, testified as an expert witness for defendant that, based on the report from Loren’s pelvic examination, Loren had not engaged in sexual intercourse on July 31, 1974. The only date or individual act ever stated was July 31, although it was contended that it had happened “on numerous occasions.” The jury evidently disbelieved the testimony regarding the July 31 date since they acquitted the defendant on count I which pertained to alleged sexual intercourse with Loren L.; the jury found the defendant' guilty of count II, i.e.: [318]commission of a lewd and lascivious act upon Loren L. between October 6, 1972, and October 6, 1973, violating Penal Code section 288.
I
Was CALJIC Instruction 4.71 a Proper Instruction In This Case?
CALJIC No. 4.71, reads: “When, as in this case, it is alleged that the crime charged was commited ‘on or about’ a certain date, if the jury finds that a crime was committed it is not necessary that the proof show that the crime was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.”
Defendant argues that: (1) the People did not prove even one specific act during the period alleged in count II of the information; (2) that CALJIC No. 4.71 was erroneously given to the jury by the trial court; and (3) the jury verdict, finding the defendant guilty of a violation of the Penal Code section 288, cannot stand.
The appeal on this issue is based upon a line of cases beginning with People v. Castro (1901) 133 Cal. 11 [65 P. 13] and People v. Williams (1901) 133 Cal. 165 [65 P. 323], which hold that where there are multiple acts placed before a jury, each being a separate similar chargeable offense in itself, the prosecution must elect the act on which the charge will stand. It cannot let the jurors range over the evidence at will and pick out any one of the offenses upon which to found its verdict. (See People v. Hatch (1910) 13 Cal.App. 521 [109 P. 1097]. Creighton argues that this case is comparable with People v. Hatch, supra, 13 Cal.App. 521 which states the following on page 535: “No court can say from this record of which offense proven under this indictment the jury found the defendant guilty.”
He then points to People v. Abdullah (1933) 134 Cal.App. 155 [25 P.2d 40], which overturned a conviction under somewhat comparable evidence (i.e., testimony which was unable to come any closer than the beginning and ending of a school year and could not identify where the act took place) because it was too general and did not concern itself with any one act and was “so unsubstantial as to amount practically to no evidence at all.” (134 Cal.App. at p. 159.) To prove viability of the doctrinal line, defendant points to People v. Gavin (1971) 21 Cal.App.3d 408 [98 Cal.Rptr. 518], decided in this district which overturned a [319]conviction on narcotics where the jury was confused by the “on or about” instruction and apparently convicted the defendant of an uncharged offense. Defendant’s contention is that, here, the jury could have convicted the defendant of acts which were outside the statute of limitations.
The final argument given by defendant on this issue is found in the interpretation of People v. Wrigley (1968) 69 Cal.2d 149, 155 [70 Cal.Rptr. 116, 443 P.2d 580], that is found in People v. Gavin (1971), supra, 21 Cal.App.3d 408, 419-420. In Wrigley the “on or about” instruction was approved even though evidence showed lewd touchings on two occasions within a possible two-month period. In distinguishing Gavin (where the defendant had apparently been convicted of an uncharged crime due to jury confusion as to the “on or about” instruction) the court stated the following about the Wrigley case: “There was no contention that defendant was in danger of being convicted of an uncharged offense, or that part of the jury might think one offense proved and part think a different offense proved. The Castro-Williams situation was not before the court, and those cases were not discussed.”
The defendant argues that these limitations of Wrigley are found in this case and Wrigley is therefore not controlling. He also argues that, as in People v. Williams, he is faced only with general evidence of a continuing crime with no single offense ever proven.
The prosecution argues that: (1) numerous acts were proven; (2) the Castro, Williams and Abdullah cases are distinguishable from this as they all involve offenses charged to specific dates while the evidence showed acts occurring over a period of time, while in this case no specific date was charged, but rather a time period was charged (one year); and (3) that People v. Wrigley supports the permissibility of the “on or about” instruction in this case where there is more than one act.
The prosecution is correct in that, if one act was proven to the satisfaction of the jury then numerous other acts must also have been proven. It is on the very number of acts that the defendant, in fact, can place his appeal. By increasing the time in which the jury may pick and choose to any time within the year charged, or for that matter any time within the three-year statute of limitations, it becomes nearly impossible for a defendant to use an alibi as a defense. This is permissible and reasonable where there is but one act to decide upon during the time period but is not acceptable where there are numerous acts.
[320]A case not discussed by either the prosecution'or the defense, of vital importance to this case is People v. Whitacre (1926) 79 Cal.App. 27 [248 P. 924], In California Jury Instructions, Criminal, (3d ed.) page 130, in the comment under CALJIC No. 4.71, the following is found; “This instruction [4.71] would also be improper if the evidence establishes two or more similar offenses upon either of which the jury might convict under a given count. People v. Whitacre, 79 Cal.App. 27, 248 P. 924.”
This rule is still" valid and the court in Wrigley gave no indication that it had any intent to overrule Whitacre. Under these circumstances, Wrigley, as read in light of Gavin, seems to be a limited area of exception to the more general Whitacre rule; that exception being that it is permissible to use an “on or about” instruction where there is more than one act shown by the evidence, only: if (1) there is no danger of the defendant being convicted of an uncharged offense, and (2) there is no danger of the defendant being convicted of an offense where part of the jury might think one offense and part might think another offense proved.
In this case the reading of CALJIC No. 4.71 was erroneous as it has undoubtedly allowed a situation where the jury could choose among numerous offenses which are almost impossible to identify and pick any one. In fact where they are so impossible to identify the only way they could possibly find the defendant guilty is by considering all of these offenses as one amorphous general offense which was proven. The instruction violates both the general rule laid down in Whitacre and also the limitations on Wrigley laid down in Gavin. The defendant is correct in that the judgment here suffers from the defect noted previously in Hatch.
The Supreme Court seems to have been more concerned with the comment to CALJIC No. 4.71 which states that “[t]his instruction is improper if People’s evidence fixes the commission of the offense at a particular time to the exclusion of any other time and defendant has presented evidence of an alibi as to that particular time” in its considerations of the Wrigley case. This is shown by the statements in People v. Jones, 9 Cal.3d 546, 557 [108 Cal.Rptr. 345, 510 P.2d 705], where they state that they were, in Wrigley, specifically offering this rule and cases involved with that reasoning. The case should not be relied upon for reasoning as to the fact that there were two offenses and therefore the court was trying to overrule Whitacre. It is fairly certain they were trying to remove any doubt as to the one comment’s validity not to destroy the other at issue in this case.
[321]The court in giving this instruction did prejudice the defendant’s case and, therefore, the judgment (order) must be reversed.1
II
IVas the Trial Court’s Failure to Grant the Defense Motion for A cquittal in Error?
On this issue the arguments of the defendant and the People are rather basic. Both consider People v. Wong (1973) 35 Cal.App.3d 812 [111 Cal.Rptr. 314], to contain a valid test for review of a denial of a motion for acquittal under Penal Code section 1118.1, although the defendant notes People v. Reyes (1974) 12 Cal.3d 486 [116 Cal.Rptr. 217, 526 P.2d 225], as a case expanding that test somewhat.
People v. Valerio (1970) 13 Cal.App.3d 912 [92 Cal.Rptr. 82], holds that there has to be substantial evidence of the existence of each element of the crime charged. People v. Reyes adds the following: “To be considered to be substantial, the evidence must be of a type which reasonably inspires confidence and is of solid value.” (See 12 Cal.3d at p. 497.) People v. Wong held that, in applying the substantial evidence rule, where the trial court has denied an acquittal motion, the appellate court must assume in favor of the trial court’s order every fact that the jury reasonably could have deduced from the evidence. The appellate court may not set aside the trial court’s denial because of insufficiency of evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.
There is in this case substantial evidence of crimes before the trier of fact. What is not there is evidence as to an individual, specific crime. All the elements were there except time, which is not a key factor in the case, and a specific incident. If CALJIC No. 4.71 had not been given (as should have been the case) it is not reasonable to believe that the jurors could have, with the evidence available, singled out any one act or incident on which to convict the defendant. For this reason alone it would be necessary to reverse. This is not due to failure to prove that an [322]act occurred on a specific date or time, rather there is a failure to prove any one act within the statute of limitations (Pen. Code, § 800). The evidence was too general to support a verdict even though that general evidence was, in its bulk, substantial. There is no possible way of singling out one individual act from among those claimed and saying there is substantial evidence to prove that act.
Ill
Should the Trial Court Have Granted Defendant’s Motion for Mistrial After Count III Was Stricken and, if not, Didthe Trial Court Err in Admitting the Subsequent Testimony of Catherine L. ?
Defendant brings these issues forward and argues them separately. Since, however, they are both involved with one question of whether the defendant was unfairly prejudiced by the testimony of Catherine L., the arguments will be handled as one issue.
Defendant’s basic contention is that a mistrial should be granted based on the following facts: (1) Count III was read to the jury; (2) the prosecutor in his opening statement said he would prove count III; (3) testimony by Joan L. of her conversation with Catherine about Catherine’s relationship with the defendant was allowed; and (4) Catherine L. was allowed to testify to acts beyond the statute of limitations both before and after count III was stricken. The defendant argues that this placed acts that, by statute of limitations, were unchargeable and could not otherwise have been introduced before the jury. It is his belief that such evidence was improper as it showed neither intent nor characteristic method, plan or scheme under which testimony of a prior uncharged offense may be allowed.
The contentions that a mistrial should be granted because of count III being read to the jury and the fact that the prosecutor stated his intent to prove that count in and of themselves are meritless. It is not unusual for a charge to be dropped after the opening statement. These arguments would have no validity no matter what the outcome of this court’s decision on the testimony of Joan L. and Catherine L.
As to the testimony of Joan L., it could be considered prejudicial only if the testimony of Catherine was improperly admitted. If Catherine’s testimony was proper, then the facts gained from Joan L.’s testimony [323]would have also come from the proper testimony of Catherine and would constitute harmless error.
All arguments ultimately center around the admissibility of Catherine’s testimony. Both defendant and People cite People v. Kelley (1967) 66 Cal.2d 232 [57 Cal.Rptr. 363, 424 P.2d 947] as the definitive California Supreme Court case regarding the admissibility of evidence of other uncharged crimes. It also is a Penal Code section 288 case of lewd conduct.
People place much emphasis on the following statement in People v. Cramer (1967) 67 Cal.2d 126, 129 [60 Cal.Rptr. 230, 429 P.2d 582], which in effect reiterated the same idea found in Kelley at pages 242 and 243: “. . . Such evidence is admissible as showing a common scheme or plan where the offenses are not too remote, are similar to the offense charged, and are committed with persons similar to the prosecuting witness.”
There is no doubt that the testimony of Catherine fits into this mold easily. However, this is a general statement of the test in a case where the court also reiterated a clear second test that was more specific in nature, which also had been given in their Kelley decision (at p. 239). It stated in Cramer (at pp. 129-130) as follows:
“Several decisions have held that the test of admissibility of evidence of another offense offered to prove common design plan, or modus operandi is whether there is some clear connection between that offense and the one charged so that it may be logically inferred that if defendant is guilty of one he must be guilty of the other. Or as the matter is sometimes stated, the other offenses offered to prove pattern, scheme or plan are sufficiently similar and possess a sufficiently high degree of common features with the act charged where they warrant the inference that if the defendant committed the other acts he committed the acts charged. [Citations.] Other cases have spoken of a ‘peculiar or characteristic behavior pattern’ [citations] ‘bizarre details’ [citation] and ‘striking similarities’ [citations].
“Tested by these standards evidence of the offense committed with James was admissible.”
Where there is a more specific test, that test should be followed. Therefore, the People must prove that the acts testified to by Catherine “possess a sufficiently high degree of common features within the act
[324]charged,” (see People v. Cramer, supra, at p. 129.) and that it “logically, naturally and by reasonable inference” (People v. Kelley, supra, at p. 239) would prove the act charged. People v. Kelley makes this requirement even more explicit by the following statement: “The evidence should be received with ‘extreme caution,’ and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused.” (See People v. Kelley, supra, at p. 239.)
Under this test of admissibility, the People fall short of the required goal. In total the similarities consist of the following: (1) both sisters allege numerous occasions; (2) they were both under the legal age; (3) the opportunity and the place of the acts were established at the same time by the relationship of the defendant to the family. This third consideration cannot be considered as it is the same single fact for both girls. To be “similar” there must be two separate but comparable facts. It would be different if the girls were from different homes and the defendant had used the same modus operandi to enable such acts to occur. It is impossible for situations which are established from the relationship in this case to be considered similar when they are in reality one.
The People have not given a “sufficiently high degree of similarities” which could be considered “striking” or “bizarre” or “peculiar of characteristic behavior” which would satisfy the test for the testimony to be admitted. It is impossible logically to infer that if defendant had done the acts claimed by Catherine’s testimony, he must also have done with Loren the acts charged.
Under the circumstances this court normally would reverse and grant a mistrial. However, due to the decision in People v. Kazee (1975) 47 Cal.App..3d 593 [121 Cal.Rptr. 221], this court is unable so to act. Kazee is a second district case decided in division 5 on April 28, 1975. In that case admitted evidence of similar acts was upheld even though there was (p. 595): “[n]o real contention made by the People that the modus operandi of defendant vis-a-vis [defendant and respondent], evidenced such striking similarities that it points to defendant as the perpetrator of the offenses against S. and C.” What the court is saying in that case is that there is no requirement that the evidence to be admitted, logically or reasonably infers the crime charged.
The following statement is found in People v. Stanley, 67 Cal.2d 812, 817 [63 Cal.Rptr. 825, 433 P.2d 913]: “. . . where the basic issue of the [325]case is the veracity of the prosecuting witness and the defendant as to the commission of the acts charged, the trier of fact is not aided by the evidence of other offenses where that evidence is limited to the uncorroberated testimony of the prosecuting witness.”
The inference gained from this would lead one to the conclusion that the supposed victim of the crime charged cannot attempt to make her testimony more credible by saying that the defendant had committed other uncharged crimes against her.
The court in Kazee seems to have concluded that since no testimony by the prosecuting witness concerning other uncharged offenses is admissible that all testimony of such offenses, if from individuals other than the prosecuting witness, is admissible. The following from Kazee makes this position more apparent: “Stanley is thus a clear indication of the Covert theory that the rationale for admissibility of evidence of sexual misconduct with others, in cases where there is no issue as to identity, absence of accident, and so forth, is simply corroboration of the complaining witness. Where such corroboration comes from the mouth of another witness, we admit it. When it consists of nothing but the complaining witness corroborating himself, we reject it.” (Kazee at p. 596.)
In Covert, (People v. Covert (1967) 249 Cal.App.2d 81 [57 Cal.Rptr. 220]) the court demonstrated that in a case such as this the admissibility of similar acts of sexual misconduct cannot be justified on any theory except as a possible attempt to buttress the credibility of the prosecuting witness against the inevitable defense challenge.
The court in Kazee seems to have abandoned all tests laid down in Kelley and Cramer so as to allow any similar uncharged offense to be allowed as evidence so long as it comes from someone other than the prosecuting witness. How Covert can be considered a basis for such a theory is impossible to understand since the California Supreme Court used the same tests found in Kelley and Cramer to decide it. They reiterated the argument that California decisions “exclude evidence of similar offenses which is relevant only to prove the defendant’s bad character, that is, his criminal disposition, because its probative value is outweighed by its prejudicial effect.” Also reiterated was the “general tests of admissibility” which was a restatement of the “logically, naturally, and by reasonable inference” test in Kelley and Cramer.
[326]It is obvious that Covert and Stanley were never intended to overturn Kelley and Cramer. The danger of allowing evidence of similar uncharged violations was discussed in Kelley as part of a discussion of intent, and vehemently rejected by that court as can be seen from the following: “It is argued that the other offenses in the instant case were admissible ... to infer . . . intent required for the commission of the crime charged. If this were the rule, the common plan or design exception would be meaningless. Evidence of any 288a violation could be introduced in any 288a prosecution, and evidence of any other particular offense such as theft or possession of marijuana would be admissible in a prosecution for that offense as showing that defendant had the disposition to commit that particular crime. Such is not and should not become the law. Evidence of other crimes is inadmissible ‘where it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged. . . .’ ” (Kelley at p. 243.)
“Thus the jury was permitted, to consider evidence of violations of section 288a that had little or no relevance in showing that defendant committed the crime charged. That such error was prejudicial is clear.” (Kelley at p. 245.)
Kazee, if followed, would do exactly what the Supreme Court warned against, allow “evidence of any 288a violation” to “be introduced in any 288a prosecution.”
Because our law is built on precedent, the court cannot turn its back on Kazee and is impelled to follow its standards, thereby allowing the evidence in the form of Catherine L.’s testimony to stand and rejecting defendant’s contention.
IV
Did the Court Err in Refusing to Give CALJIC2.70?
This issue raised by defendant revolves around the testimony of Joan L. as to an alleged conversation between her and the defendant after the charges had been filed against him in this case.
¡ “Q. [by the prosecutor] All right. Did you ask him or did he tell you anything about these things that he was alleged to have done with Loren or Cathy?
[327]“A. [by Joan L.] He said he felt that he still loved us and he was trying to help us.” (RT 35.)
The defendant argues that the testimony amounts to an admission by implication. Further, that such admission required the CALJIC No. 2.70 instruction.
There is no merit to this argument. The statement admitted nothing other than his concern for the family. Neither did it imply any admission of guilt even when considered along with the other evidence.
This did not constitute an admission under CALJIC No. 2.70 and therefore there was no error on the part of the trial court.
Conclusions
I. CALJIC No. 4.71, was in the context of this case, erroneously given.
II. The trial court erred in not granting the defense motion for acquittal as no single offense was ever proven nor was there “substantial evidence” on which the verdict could rest.
The judgment (order granting probation) is reversed.
Dunn, J., concurred.
By a supplemental letter, the People rely on People v. Fremont (1941) 47 Cal.App.2d 341 [117 P.2d 891]. That reliance is misplaced. Fremont was concerned (so far as any issue herein involved) only with the time at which the prosecution may be required to elect between various possible dates. No question as to the propriety of any instruction was either raised or determined.