People v. Alva, Cr. 32139

• Citation: 90 Cal.App.3d 418,153 Cal.Rptr. 644
• Decision Date: 14 March 1979
• Docket Number: Cr. 32139
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Jose ALVA, Defendant and Appellant.

Page 644

153 Cal.Rptr. 644

90 Cal.App.3d 418

The PEOPLE, Plaintiff and Respondent, v. Juan Jose ALVA, Defendant and Appellant.

Cr. 32139.

Court of Appeal, Second District, Division 4, California.

March 14, 1979.

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Jonathan B. Steiner and Nancy Ann Stoner, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

ALARCON, Associate Justice:

Following a jury trial, Juan Jose Alva was convicted, as charged, of incest, in violation of section 285 of the Penal Code (count I), the commission of lewd and lascivious acts upon a child under the age of 14 years, in violation of section 288 of the Penal Code (count II), and unlawful sexual intercourse, in violation of section 261.5 of the Penal Code (count III).

Defendant was sentenced to the state prison on each count. The sentences were ordered to be served concurrently.

Prosecution Evidence

The complaining witness, L., was born on August 15, 1964. Her parents had been divorced for four years as of the time of trial. In November of 1976, L. went to live with her father, the appellant, because she could not get along with her mother. Appellant's apartment consisted of a bedroom, a living room, and a kitchen. Appellant's mother slept in the bedroom. L. slept with appellant in the living room on a couch which converted into a bed.

On a Wednesday evening in mid-February, at around 9:30 p. m., appellant got into bed, rolled L. over, pulled down his shorts and placed his penis inside her vagina. As he did so, L. told him to get off and she pushed him off. L. got up and went to the bathroom because she was wet. She did not tell anyone immediately afterward because her father told her not to and she was afraid of him. Appellant's mother slept in the bedroom with the door open and could have seen what happened between L. and her father. The next night a second act of intercourse occurred at the same time and place. After that, appellant had an act of intercourse with L. every week or two until July 28, 1977. L. did not tell anyone about the acts of sexual intercourse during this entire period because of her fear of her father. She got along well with her father during this time. She did not hate her father. In May 1977, L.'s 11-year-old brother came to live with his father. He slept in the bedroom with his grandmother.

L.'s menstrual period started each month on the sixth day. On August 6th, L. phoned her mother because she had not begun to menstruate and asked if she could move back into her mother's home. On August 7, 1977, L. was taken to her mother's house. She immediately told her mother what had been going on with her father. L. was not pregnant; her menstrual period began on August 8, 1977.

Defense Testimony

The following evidence was offered on behalf of appellant. Maria Alva testified that she slept in the bedroom of appellant's small apartment. L. slept on a sofa bed. Appellant slept in a sleeping bag on the floor. Maria Alva never saw appellant in bed with L. She never heard any strange noises coming from the living room. The sofa bed was about 10 to 15 feet from her bed.

Maria Alva changed the sheets on L.'s bed about every third day. She never saw any evidence of sexual activity. Mr. Alva insisted that L. be home by 5:00 o'clock in the afternoon. She was not permitted to go out in the evening.

Marcos Alva testified that his mother kicked L. out of the house after they got into a fight. Marcos telephoned his father at L.'s request. Appellant took them to his apartment. The next day Marcos returned to his mother's house. In May, Marcos went to live at his father's apartment. He slept on a sofa in the living room. He did not sleep with his grandmother. Marcos never saw his sister and his father in the same bed. When L. lived with her mother she stayed out at night until about ten o'clock.

Rita Hernandez testified she met appellant in September of 1976. Mrs. Hernandez began having sexual intercourse with appellant once or twice a week about two months after they met.

Appellant testified that, while L. stayed with him, she slept on a sofa bed and he slept on the floor in a sleeping bag. Marcos Alva slept on a sofa, not with his grandmother. Appellant did not ever sleep in the same bed with L.

Section 402 Proceedings

At the request of the prosecutor, the trial court conducted a hearing pursuant to section 402 of the Evidence Code to determine if the testimony of Dr. George Y. Abe should be excluded.

Dr. Abe testified that he examined L. under court appointment. Dr. Abe interviewed L. but did not give her any psychological test. He obtained from L. her version of what had occurred. He also questioned her as to what sensation she had felt. Defense counsel had told Dr. Abe that Marcos Alva had stated that (1) L. had come home late at night, (2) that she had brought boys home when her mother was away, and (3) that she had run away from home for a couple of days. L. denied each of these allegations. When asked his opinion as to her veracity Dr. Abe testified on direct examination, that L. was not suffering from any psychiatric disorder, but he felt there was some question as to whether or not she was being frank with him or telling him all that really occurred, if it did occur. ¹ His opinion was based on the fact that she did not give him an idea of what sensations she had, whether distasteful or pleasurable, other than pain, and the contradictions between her brother's statements about certain events and her denial thereof.

The trial court asked Dr. Abe if it was his opinion that L.'s testimony was unreliable because she didn't or wouldn't tell him she had any other sensations other than a feeling of pain. Dr. Abe replied as follows: "No. All I am raising is the question is it possible. I am not saying she is unreliable or anything. I am saying there is a possibility that it could be."

The trial court granted the prosecutor's motion to exclude the testimony of Dr. Abe on the ground that the prejudicial effect of his testimony outweighed its probative value. In explaining its ruling the court commented as follows: "The court sustains the motion pursuant to section 402, that the testimony that is offered by reason of the fact that the doctor's professional background would far outweigh its probative value. The opinions and conclusions that he would reach are precisely those that the jurors are being asked to reach. It does not require and should not require an expert to pronounce upon it.CI Effect of Proof of Similar Uncharged Acts Without Election or Appropriate Instruction

As noted above, the prosecution presented evidence of the commission of a number of acts of sexual intercourse over a period of time between February 1977 and July 1977. At no time did the prosecution, prior to argument, inform the jury of the specific act upon which he intended to rely to prove each of the alleged offenses. No demand was made by defense counsel for an election. The court gave no instruction to the jury concerning their responsibility when faced with proof of similar uncharged offenses. Prior to the voir dire examination, the trial judge read the following portions of the information to the jury: "On or about a period of time between February 9, 1977, and July 28, 1977, that Mr. Alva did violate Penal Code section 285, a crime commonly referred to as incest; That he did willfully, unlawfully and knowingly and incestuously have sexual intercourse with L. . . ., who was then and there his daughter. (P) Count II of the information charges violation of section 288 of the Penal Code, during the same period of time, alleging that the defendant, Mr. Alva, did willfully, unlawfully, feloniously and lewdly commit lewd and lascivious acts upon the body or person of L. . . ., a child under the age of 14 years, with the intent of arousing, appealing to or gratifying the lust, passion or sexual desires of either the defendant or the child. (P) Count III of the information charges violation of section 261.5 of the Penal Code, an offense commonly referred to as an unlawful sexual intercourse, same time period, February 9, 1977, through July 19, 1977, in which it is alleged that Mr. Alva did willfully, unlawfully and feloniously have and accomplish acts of intercourse upon L. . . ., who was then and there a person under the age of 18, to wit, 13 years of age."

Thus, the jury was made aware by the court at the outset of the trial of the fact that the defendant was accused of committing each of the three crimes charged on some unspecified date between February and July 1977, but was never told by the court how they were to select the act which constituted each of the three charged offenses.

The leading case in California concerning the problem before us is People v. Castro (1901) 133 Cal. 11, 65 P. 13. In Castro, the prosecutor alleged that the defendant committed the crime of rape of a woman under the age of consent, now known as unlawful sexual intercourse, on June 30, 1899. At trial, evidence was presented showing the commission of four separate acts of sexual intercourse. These acts occurred over a period of several months. None of the acts occurred on June 30, 1899. In upholding the trial court's order granting a new trial, the Supreme Court commented as follows: "Under the Instructions given to the jury in the case at bar, the defendant should have been convicted if any one of the various acts of intercourse sworn to by the prosecutrix was established beyond a reasonable doubt; but certainly, the defendant was not called upon to defend himself against all of these respective acts of intercourse, extending through a...