Creutz v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: McKINSTER; RAMIREZ, P.J., and RICHLI
• Citation: Creutz v. Superior Court, 56 Cal.Rptr.2d 870, 49 Cal.App.4th 822 (Cal. App. 1996)
• Decision Date: 25 September 1996
• Docket Number: No. E017341,E017341
• Parties: , 96 Cal. Daily Op. Serv. 7204, 96 Daily Journal D.A.R. 11,771 Dennis CREUTZ, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Riverside, Respondent; PEOPLE of the State of California, Real Party in Interest.

Page 870

56 Cal.Rptr.2d 870

49 Cal.App.4th 822, 96 Cal. Daily Op. Serv. 7204,

96 Daily Journal D.A.R. 11,771

Dennis CREUTZ, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Riverside, Respondent PEOPLE of the State of California, Real Party in Interest.

No. E017341.

Court of Appeal, Fourth District, Division 2, California.

Sept. 25, 1996.

Rehearing Denied Oct. 17, 1996.

Alan C. Oberstein, Public Defender and Lynn Etkins, Deputy Public Defender, for Petitioner.

Grover Trask, District Attorney and Karen S. Gorham, Deputy District Attorney, for Respondent and Real Party in Interest.

OPINION

McKINSTER, Associate Justice.

Petitioner Dennis Creutz, the defendant in a criminal matter pending before the superior court, ¹ seeks a writ of prohibition compelling the trial court to grant his motion to dismiss or set aside one count of the information charging him with lewd and lascivious conduct with a child. ² (Pen.Code, § 288, subd. (a).) We hold that the evidence properly admitted at the preliminary hearing was insufficient to support the challenged count; in so holding, we construe Evidence Code section 1228 and find it inapplicable to the case at bar.

It will be helpful to an understanding of the evidence presented if we quote the relevant provisions of Evidence Code section 1228 before setting out the evidence. That statute creates a narrow exception ³ to the hearsay rule in certain cases involving specified sex crimes against children, including violations of Penal Code section 288, subdivision (a). In pertinent part, the statute reads "Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person ... a court, in its discretion, may determine that a statement of the complaining witness is not made inadmissible by the hearsay rule if it finds all of the following: (a) The statement was made by a minor child under the age of 12, and the contents of the statement were included in a written report of a law enforcement official or an employee of a county welfare department. (b) The statement describes the minor child as a victim of sexual abuse. (c) The statement was made prior to the defendant's confession. ... (d) There are no circumstances, such as significant inconsistencies between the confession and the statement concerning material facts establishing any element of the crime or the identification of the defendant, that would render the statement unreliable. (e) The minor child is found to be unavailable pursuant to paragraph (2) or (3) of subdivision (a) of Section 240 or refuses to testify. (f) The confession was memorialized in a trustworthy fashion by a law enforcement official."

The statute further provides that at trial, the statement of the minor is, if found admissible, not to be givento the jury, but is to be used solely to determine the admissibility of the confession. Section 1228 therefore does not create a general exception to the hearsay rule for the described statements, but only allows them to be admitted for a limited purpose and to a limited audience--that is, the trial judge.

In short, section 1228 is directed at the corpus delicti rule. This ancient principle requires the "body of the crime" to be proved by evidence independent of the statements of the defendant, and such statements are themselves inadmissible until the corpus delicti requirement is satisfied. (People v. Moreno (1987) 188 Cal.App.3d 1179, 1187, 233 Cal.Rptr. 863; Jones v. Superior Court (People) (1979), 96 Cal.App.3d 390, 393, 157 Cal.Rptr. 809, 1 Witkin & Epstein, Cal.Crim. Law, Elements of Crime §§ 136-137.) The rule applies to preliminary hearings. (See Jones, supra, at p. 393, 157 Cal.Rptr. 809; Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 391-392, 247 Cal.Rptr. 226.) Section 1228 basically allows evidence that would otherwise be inadmissible to be admitted in child sex-crimes cases, but solely for the purpose of establishing the corpus delicti and thus paving the way for trier of fact to hear the defendant's inculpatory statements.

We turn now to the facts of this case.

The challenged count (see fn. 2) involved the minor Katrinna S., aged three. It was stipulated at the preliminary hearing that she was incompetent to testify. Her statements were recounted by Officer Beamesderfer, who testified that she told him that "Daddy [defendant is her mother's longtime boyfriend] put his tail in my butt," later indicating that by "tail" she meant his penis. Katrinna also said that defendant had touched her in the vaginal area and had sucked on her nipples.

Following the conversation with the minor, Officer Beamesderfer interviewed defendant, who made the statements we will quote later. Some months later, Officer Beamesderfer spoke with Katrinna again, at which time she provided some additional details of the alleged molestations.

DISCUSSION

The parties agree that Evidence Code section 1228 appears never to have undergone appellate scrutiny; indeed, defendant suggests that this may be the only case in which it has ever been employed. ⁴ It is therefore appropriate to discuss briefly some of the statutory requirements which are not in issue here, before proceeding to the main issue.

A.

Requirements not relating to a Confession

There is no dispute that the requirements of section 1228, subdivision (a), were met here; Katrinna was only three years old and Officer Beamesderfer duly reported her statements. ⁵ It is also clear that the minor's remarks describe sexual abuse. (Subd. (b).) However, under subdivision (c), the statement of a minor is only admissible if it is made before the defendant's confession. Although it is not entirely clear whether the trial court (or the magistrate) reached the point, we find that the minor's statements in the second interview, made long after defendant's statements, could not be used to establish the corpus delicti. The plain language of the statute prohibits such use, and we have accordingly not included them in our statement of the evidence.

Defendant was originally charged with three counts arising from the alleged molestation of Katrinna, one each based on her statements concerning vaginal fondling, sodomy, and touching her breasts. As will be shown below, defendant's own statement at most referred to a touching in the genital area. There was therefore an inconsistency with the minor's broader statement, an inconsistency within the meaning of subdivision (d). As noted above, the trial court correctly dismissed two of the counts against defendant based on the fact that his statement did not match completely with the minor's assertions.

Subdivision (e) requires that the minor be unavailable at the trial (or hearing) under Evidence Code section 240, subdivision (a)(2) or (3), or must refuse to testify. Subdivision (a)(2) covers witnesses who are "Disqualified from testifying to the matter," while subdivision (a)(3) describes those who are "Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity." A witness who is unable to understand the duty to tell the truth is "disqualified," as is one incapable of expressing himself or herself so as to be understood. (Evid.Code, § 701, subdivisions (a)(1) and (2).) It is commonplace to speak of a child witness who does not understand the duty to tell the truth either as "incompetent to testify" or "disqualified from testifying." (See In re Clara B. (1993) 20 Cal.App.4th 988, 995-996, 25 Cal.Rptr.2d 56.) A minor who is not qualified to testify is therefore "unavailable" under section 240, subdivision (a)(2). (See People v. Liddicoat (1981) 120 Cal.App.3d 512, 514-515, 174 Cal.Rptr. 649.) The trial court correctly found that Katrinna's testimony met this criterion. ⁶

B.

1. Section 1228 Applies Only Where Defendant has Made a Confession

In this case, Katrinna's statement concerning a vaginal touching satisfied the express requirements of the statute. In theory, therefore, it was properly admissible to establish the corpus delicti of the charged offense. The problem is not that Katrinna's statement was inadmissible, but that the peculiar wording of the statute can only be interpreted as allowing the establishment of a qualified or conditional corpus delicti which is sufficient only if the prosecution wishes to introduce the defendant's confession. As we will explain, there was no confession here, and consequently Katrinna's statements, being unsupported by other sufficient evidence of the corpus delicti, could not justify the admission of inculpatory statements not amounting to a confession.

Section 1228 uses the term "confession" no fewer than five times, and it never uses any other word or phrase to describe the statement by the defendant which is to be introduced. The word has a distinct meaning in criminal law. "A confession is a declaration by a person that he is guilty of a crime.... It differs from an admission of an accused in that the confession is an express and complete acknowledgment of guilt of the crime, while an admission may be either express or implied, and is merely an acknowledgment of some fact which tends to prove guilt." (1 Witkin, Cal.Evidence, (3 ed. 1986) The Hearsay Rule § 605, pp. 577-578; see People v. Boyer (1989) 48 Cal.3d 247, 279 at fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610.) A confession must encompass all the elements of a crime (People v. Murtishaw (1981) 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446) and this includes the element of intent, where applicable. (People v. Thompson (1990) 50 Cal.3d 134, 162 at fn. 10, 266 Cal.Rptr. 309, 785 P.2d 857.)

The distinction is not academic, or at least has not been until recently. Historically, the erroneous admission of a confession was reversible per se, while the erroneous admission of an admission was not reversible if the court could conclude beyond a...