Ex parte Hess

• Decision Date: 04 October 1955
• Docket Number: Cr. 5672
• Citation: 288 P.2d 5,45 Cal.2d 171
• Parties: Matter of the Application of Troy Clifford HESS for a Writ of Habeas Corpus.
• Court: California Supreme Court

Page 5

288 P.2d 5

45 Cal.2d 171

Matter of the Application of Troy Clifford HESS for a Writ of Habeas Corpus.

Cr. 5672.

Supreme Court of California, In Bank.

Oct. 4, 1955.

Bruce A. Werlhof and Robert W. Trimble, Red Bluff, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Raymond

M. Momboisse, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

In April 1954, petitioner, who was then 17 years of age, was charged by an information with

'the crime of rape, a felony, in violation of Section 261, subdivision 3, of the Penal Code of the State of California (Forcible), committed as follows:

'The said Troy Clifford Hess, on or about the 11th day of April A.D. 1954, in the said County of El Dorado, in the said State of California, and before the filing of this information, did then and there willfully, unlawfully, feloniously, and with force and violence, have and accomplish an act of sexual intercourse with and upon * * *, a female person, who was not then and there the wife of the said defendant, Troy Clifford Hess, without the consent and against the will of the said * * *, and she, the said * * *, then and there resisted the accomplishment of said act of sexual intercouse, but her resistance was then and there overcome be force and violence used upon and against the said * * *, by said defendant, Troy Clifford Hess.' (Name of alleged victim deleted.)

The jury returned a verdict finding petitioner guilty of contributing to the delinquency of a minor. Welfare & Institutions Code, § 702. A judgment of conviction was entered on the verdict, and petitioner was committed to the Youth Authority for the time rrescribed by law. He did not appeal and the judgment became final. He now seeks his discharge on habeas corpus.

Petitioner contends that he was acquitted of the charge of forcible rape, that contributing to the delinquency of a minor is not an offense necessarily included in the crime of rape, and that the court therefore acted in excess of its jurisdiction in entering a judgment of conviction of that offense against him.

In support of his contention that defendant's conviction of contributing to the delinquency of a minor was proper on the ground that that offense is necessarily included in the offense with which he was charged, respondent makes the following argument: (1) there is but one crime of rape, and the six subdivisions of section 261 of the Penal Code merely state six different ways of committing the same crime, People v. Craig, 17 Cal.2d 453, 455, 110 P.2d 403; (2) contributing to the delinquency of a minor is necessarily included in a charge of statutory rape, People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512; (3) therefore, contributing to the delinquency of a minor is necessarily included in the crime of rape, regardless of which of the subdivisions of section 261 defendant is alleged to have violated. This argument is internally inconsistent and self-destructive. If all of the definitions of rape must be considered in determining what are necessarily included offenses, the conclusion is inescapable that contributing to delinquency of a minor is not a necessarily included offense since rape of the kinds described in subdivisions 2-6 of section 261 could be committed on a woman 21 years of age or more. Thus, to accept respondent's argument would create an inconsistency with a series of cases, People v. Greer, supra, 30 Cal.2d 589, 597-598, 184 P.2d 512, and cases cited; People v Chapman, 81 Cal.App.2d 857, 863-866, 185 P.2d 424, holding that contributing to the delinquency of a minor is necessarily included in statutory rape, for those cases are based on the premise that statutory rape is a special kinw of rape and that every commission of that offense will contribute to the delinquency of a minor.

Nor are the holdings in those cases inconsistent with the holding in People v. Craig, supra, 17 Cal.2d 453, 110 P.2d 403. In that case it was held that the defendant could not be convicted on two counts merely because he committed a forcible rape on a victim under 18 years of age. Although it was stated in the Craig case that the 6 subdivisions of section 261 of the Penal Code 'merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act', 17 Cal.2d at page 455, 110 P.2d at page 404, that statement must be read in light of the problem then before the court, that is, whether the defendant could be doubly punished for a single act. Under section 654 of the Penal Code it is clear that double punishment would be improper, In re Chapman, 43 Cal.2d 385, 389-390, 273 P.2d 817; People v. Knowles, 35 Cal.2d 175, 187-189, 217 P.2d 1; People v. Slobodion, 31 Cal.2d 555, 561-563, 191 P.2d 1, regardless of whether there is but one offense or six different offenses of rape.

Section 1159 of the Penal Code provides that 'The jury * * * may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged * * *.' 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' People v. Greer, 30 Cal.2d 589, 596, 284 People v. Greer, 30 Cal.2d 589, 596, 184 33 Cal.2d 711, 713, 204 P.2d 321. Forcible rape, Pen.Code, § 261, subd. 3, can be committed without contributing to the delinquency of a minor, e. g., forcible rape of a woman 21 years of age or more. The latter offense, therefore, is not necessarily included in the former. People v. Kennedy, 133 Cal.App.2d 693, 284 P.2d 898.

A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense. People v. Smith, 136 Cal. 207, 208, 68 P. 702; People v. Arnett, 126 Cal. 680, 681, 59 P. 204; People v. Wallace, 9 Cal. 30, 32; In re Colford, 68 Cal.App. 308, 311, 229 P. 63; People v. Arnarez, 68 Cal.App. 645, 648, 651, 230 P. 193; People v. Akens, 25 Cal.App. 373, 376, 143 P. 795; see also, People v. Mahony, 145 Cal. 104, 107-109, 78 P. 354; Penal Code, §§ 950, subd. 2, 1159, 1426. The information charging forcible rape in the present case did not advise petitioner that he must be prepared to controvert evidence that his alleged victim was under the age of 21 years and to defend a charge of having committed an act that would tend 'to cause or encourage any person under the age of 21 years' to become a delinquent. Welf. & Inst.Code, § 702; see, also, People v. Lamanuzzi, 77 Cal.App. 301, 303-304, 246 P. 557; People v. Salisbury, 59 Cal.App. 299, 300-301, 210 P. 642; People v. Akens, supra, 25 Cal.App. 373, 374-375, 143 P. 795. Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682; Cooke v. United States, 267 U.S. 517, 536-537, 45 S.Ct. 390, 69 L.Ed. 767; In re Digiuro, 100 Cal.App.2d 260, 261, 223 P.2d 263, 873; see, also, People v. Robinson, 107 Cal.App. 211, 217, 290 P. 470.

Since it appears from the judgment roll, cf. In re Bell, 19 Cal.2d 488, 500-505, 122 P.2d 22, that the offense of contributing to the delinquency of a minor was not charged against petitioner in the information, that it is not necessarily included in the offense that was charged therein, and that the court therefore acted in excess of its jurisdiction in entering a judgment of conviction of that offense against him, his imprisonment under that judgment of conviction is unlawful.

It is contended, however, that petitioner is not entitled to be discharged but must be remanded to the custody of the sheriff of the county in which he was tried since the warrant under which he was held by that sheriff has not been superseded by a valid judgment of conviction or acquittal. In re McCoy, 32 Cal.2d 73, 77, 194 P.2d 531. Had the offense of contributing to the delinquency of a minor been an offense necessarily included in the offense charged, the verdict finding petitioner guilty of the former offense would have constituted an acquittal of the latter. People v. Greer, 30 Cal.2d 589, 598, 184 P.2d 512, and cases cited. Moreover, in such a case, by attacking the validity of the conviction for the lesser offense, petitioner would not waive his right to rely on that acquittal as a binding adjudication that he was not guilty of the greater offense charged. People v. Gordon, 99 Cal. 227, 229-232, 33 P. 901; People v. McFarlane, 138 Cal. 481, 486, 71 P. 568, 72 P. 48, 61 L.R.A. 245; People v. Smith, 134 Cal. 453, 455, 66 P. 669; People v. Apgar, 35 Cal. 389, 391; People v. Gilmore, 4 Cal. 376, 377. This rule is based on the theory that the jury, by returning a verdict of guilty of the lesser offense, returns an implied verdict of not guilty of the greater offense, and that any error affecting the express verdict of guilty does not affect the conclusiveness of the implied verdict of acquittal. People v. Gordon, supra; People v. Gilmore, supra. The theory of these cases is equally applicable in the present case. Petitioner was charged with and tried for the crime of forcible rape, and it must be presumed that the jury concluded that he was not guilty of that offense before they considered whether the should be convicted of what they erroneously believed to be a lesser included offense. Accordingly, by finding defendant guilty of contributing to the delinquency of a minor, being in the terms of the verdict, 'a lesser offense included in the offense charged in the information,' the jury acquitted defendant of the offense charged, and with respect to...