People v. Andrus

• Decision Date: 24 April 1958
• Docket Number: Cr. 1163
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Respondent, v. George Edwin ANDRUS and Mildred Elizabeth Florance, Appellants.

Page 617

324 P.2d 617

159 Cal.App.2d 673

PEOPLE of the State of California, Respondent, v. George Edwin ANDRUS and Mildred Elizabeth Florance, Appellants.

Cr. 1163.

District Court of Appeal, Fourth District, California.

April 24, 1958.

Rehearing Denied May 19, 1958.

Hearing Denied June 17, 1958.

Samuel Dreizen, Santa Ana, for appellants.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

WAITE, Justice pro tem.

The Grand Jury of Orange County returned an indictment charging appellants with five separate offenses. In Count One appellants were charged with violation of section 288 of the Penal Code committed upon Charlotte F. Florance on or about February 18, 1955. Count Two charged the commission of a similar offense upon the same child on or about December 20, 1955. In Count Three appellants were charged with violating Penal Code, section 261, subd. 1, accomplished with Sarah Lou Andrus on or about February 19, 1955. In Count Four, appellants were charged with incest in violation of Penal Code Section 285, committed with respect to the same person, and on or about the same date as in Count Three. In Count Five appellants were charged with violation of section 702 of the Welfare and Institutions Code.

After motions made in propria persona to set aside the indictment under section 995 of the Penal Code had been denied, appellants pleaded not guilty to the charges and moved to disqualify the Superior Court Judges of Orange County. The Court found that neither Judge Shea nor Judge West was disqualified. Appellants then procured counsel and made a motion for change of venue which was denied, but the Court granted their motion to set aside their pleas and considered a new motion to dismiss the indictment under Penal Code, section 995. The motion was granted as to Count Five and denied as to the remaining Counts, whereupon appellants pleaded not guilty to each of the four Counts remaining. After trial before a jury appellants were found guilty as to Counts One and Two and appellant Andrus was found guilty of violation of section 702 of the Welfare and Institutions Code, a lesser offense included within the offense charged in Count Three. Appellant Florance was found not guilty as to Count Three and both appellants were found not guilty as to Count Four.

After the return of the jury's verdicts the Court adjourned criminal proceedings for the purpose of determining the question of sexual psychopathy, and after a hearing appellants were found to be sexual psychopaths within the meaning of the Welfare and Institutions Code, § 5500 et seq., and were committed to the Patton State Hospital for a period not exceeding ninety days. In subsequent proceedings the Court found appellants not to be sexual psychopaths and criminal proceedings were reconvened. Motions for new trial were denied as to each appellant with respect to Counts One and Two. Motion for a new trial of appellant Andrus as to Court Three was granted, and on motion of the District Attorney Count Three was dismissed. Rpobation was denied and both appellants were sentenced to the State Prison for the term prescribed by law on Counts One and Two, the terms being ordered to run concurrently. Each appellant has appealed from the judgment of conviction and from a denial of the motion for a new trial, urging several grounds for reversal.

A summary of the facts in the light most favorable to respondent (People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513) shows that Charlotte Florance, daughter of appellant Florance was thirteen years of age at the time of the offense alleged in Count One on February 18, 1955, the child having been born January 3, 1942. She lived in Orange with her family until June or July of 1955, at which time the family moved to Buena Park. Charlotte was acquainted with Sarah Lou Andrus, daughter of appellant Andrus, and Sarah Lou had lived in the Florance residence in Orange for a time. During the period when Charlotte was living in Orange she went to Buena Park and spent the night with appellant Andrus, and the following morning discussed the incident with Sarah Lou, who recalled that the conversation took place in February 1955.

Charlotte had become a member of a religious organization of which appellant Andrus was minister and she had asked appellant Andrus for instruction to aid her in understanding sex. Before Charlotte went to spend the night with appellant Andrus she had a conversation with her mother, appellant Florance, who told her that she (Charlotte) was going to do what God wanted her to do and that she would have to do anything that appellant Andrus asked her to do. After arrival at the Buena Park residence Charlotte and appellant Andrus went to bed together. The girl related her problems to appellant Andrus and he talked to her about the body and about life. While they were in bed together appellant Andrus fondled Charlotte on her private parts and on her breasts.

Some time near Christmas 1955, the exact date not being recalled by Charlotte, she went to bed again with appellant Andrus, at which time she told him she was fearful of something which had happened in connection with her sister and that she wanted instruction as to an erection and what it meant for a man to be released. Appellant Andrus again fondled Charlotte on her private parts and had her rub his private parts. Appellant Florance stated in the presence of a Deputy Sheriff on February 1, 1956, with respect to Counts One and Two, that she was aware of the instruction being given her daughter by appellant Andrus and was aware of the events after they transpired. The evidence shows that on both occasions above related appellant Florance told Charlotte to go with appellant Andrus and do as he requested.

Appellant Andrus admitted going to bed with Charlotte on the occasion in February, 1955, but contended that it was merely a discussion about her problems and that there was no demonstration. He testified that at no time did he touch Charlotte's private parts nor did he place his hand beneath her nightgown; and that his only intent on that occasion was as a marriage counsellor to help Charlotte and give her instructions on how to solve her problem of fear. As to the offense alleged in Count Two, appellant Andrus denied he was in bed with Charlotte on or about that date and that after the incident on February 18, 1955, he gave her no further instruction before her fourteenth birthday, which occurred January 3, 1956.

Appellant Florance testified that she had no knowledge of the matters alleged in Count Two and that she was not present at any of the acts alleged in either Count One or Count Two.

Appellants first contend that the District Attorney was guilty of prejudicial misconduct in his opening statement, in his interrogation of various witnesses, and in his argument to the jury. In his opening statement the Deputy District Attorney referred to background association of the appellants in 1954 and we find nothing prejudicial in the statements made. Relevant circumstances in such a case include companionship and conduct on the part of the defendants both before and after the offense and such circumstances might be of value by way of proof as bearing on a plan or on intent (People v. Moore, 120 Cal.App.2d 303, 260 P.2d 1011).

Another instance of alleged misconduct occurred when the Deputy District Attorney stated '* * * and here is a man, a man not her father and the two of them sleeping in the same bedroom.' An objection on the ground that the matter was argumentative in form was sustained by the Court and thereby any prejudice was obviated. People v. Burwell, 44 Cal.2d 16, 37, 279 P.2d 744. Both the Court and counsel told the jury that the opening statement was not to be considered as evidence, and in the formal instructions to the jury the Court again reminded the jurors that any statement by counsel as to the facts must not be regarded as evidence. It is presumed that the jurors followed the instructions of the Court. People v. Sutic, 41 Cal.2d 483, 494, 261 P.2d 241.

Appellants urge that further prejudice occurred in statements to the effect that there was a plan on the part of both appellants to commit sex acts on the children and argued that there was no charge of conspiracy. The presence of a plan may well be a crucial factor in the case of aiding and abetting and a conspiracy may be proved even if not pleaded. People v. Tanner, 3 Cal.2d 279, 44 P.2d 324. It is apparent that no prejudice resulted.

Finally, in connection with the opening statement, it is contended that prejudice resulted when the prosecutor stated that he thought the People would prove the matters with the help of God. The Court ordered the latter portion of the statement stricken as being outside the scope of the opening statement, but appellants urge that irreparable damage resulted in view of the fact that appellants were connected with a religious organization. However, the Court admonished the jurors to disregard the statement and formally instructed them that they were not to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.

The fact that some of the remarks in the prosecutor's opening statement were not substantiated or that certain evidence was eventually stricken does not show prejudice in the absence of a showing of bad faith. An opening statement is supposed to be an outline of what the People intend to prove. The failure to do so, either on account of the rules of evidence or for any other reason, does not necessarily indicate prejudice. People v. Planagan, 65 Cal.App.2d 371, 407, 150 P.2d 927.

The contention of appellants that prejudicial misconduct occurred in the interrogation of certain witnesses is not borne out by the evidence. Without reciting in detail all of the questions asked it is sufficient to say that the trial Court sustained objections where proper and the...