People v. Mitchell

[Opinion certified for partial publication.*]

Counsel Patrick M. Hevesy, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Frederick R. Millar, Jr., and Deborah D. Factor, Deputy Attorneys General, for Plaintiff and Respondent. Opinion

CROSBY, J. —Kurt William Mitchell was convicted of forcible oral copulation and false imprisonment (Pen. Code, §§ 288a, subd. (c) and 236). He claims the trial court erred in (1) precluding him from offering evidence of his good character for truth and veracity, (2) allowing testimony concerning an admission overheard in a jailhouse conversation with his wife, (3) permitting overly detailed fresh complaint evidence, and (4) refusing to give instructions on certain claimed lesser included or related offenses.

I*

On November 11, 1981, about 2:30 in the afternoon, the victim ran out of gas near the Garden Grove freeway’s Magnolia off-ramp on the way [256]home from her employment. Mitchell stopped his truck and offered a lift to a gas station. She accepted. While driving on the freeway after obtaining the gas, Mitchell forced her to masturbate and orally copulate him to climax. He then left her at her vehicle.

Mitchell was arrested in May of 1982, when the victim spotted him doing landscape work in the City of Westminster. Garden Grove Police Officer Bailey later transported Mitchell from the Westminster Police Department to the Orange County jail. In the intake area of the latter facility, Mitchell was permitted a telephone call to his wife over a speaker phone readily audible to all persons standing nearby. Prisoners are not permitted to use a regular phone receiver there because, as the officer explained, they are to be handcuffed in that area of the jail.

During the conversation, Mitchell’s wife asked, “All I want to know is whether or not you did it.” Bailey testified, “He paused and hummed” and then answered, “Yes, I made a mistake.”

At trial Mitchell denied any use of force and said he believed the victim willingly engaged in the sex act, although she seemed concerned and hesitant at times.

II

The trial court refused to allow defense character witnesses to be questioned concerning Mitchell’s reputation for truth and veracity because his credibility had not been attacked by the prosecution (although they were permitted to state that his reputation for peacefulness and nonviolence was good). Mitchell claims the better reasoned of two lines of authority permits affirmative proof of character for truth and veracity where a defendant’s testimony is in direct conflict with the victim’s and his truthfulness, at least by implication, is thus at issue. Our difficulty with this argument is a simple one; we have failed to locate any cases in the line Mitchell advocates.