People v. Barney

• Decision Date: 31 May 1983
• Citation: 143 Cal.App.3d 490,192 Cal.Rptr. 172
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Oliver Lavell BARNEY, Defendant and Appellant. Crim. 11966.

Page 172

192 Cal.Rptr. 172

143 Cal.App.3d 490

The PEOPLE of the State of California, Plaintiff and Respondent, v. Oliver Lavell BARNEY, Defendant and Appellant.

Crim. 11966.

Court of Appeal, Third District, California.

May 31, 1983.

As Modified June 20, 1983.

Certified for Partial Publication.

Quin Denvir, State Public Defender, and Michael R. Snedeker, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., and Willard F. Jones and Garrick W. Chock, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Associate Justice.

Defendant was convicted by a jury of one act of incest with his daughter (Pen.Code It is unnecessary to recapitulate the evidence in its sordid detail. The testimony shows defendant regularly had sexual intercourse with his three minor daughters and then with his granddaughter commencing when the girls were six or seven years old and terminating when they left his home. The pertinent details will be related in the course of the discussion.

                §   285) and two lewd acts upon the body of his granddaughter, a child under the age of 14 years (Pen.Code, § 288, subd.  (a)).  He appeals from the judgment (order of probation).  We reverse in part
                

DISCUSSION

I

The act of incest charged occurred in Riverside County. Defendant was tried in Butte County. At the outset of trial, before jury selection, defendant unsuccessfully objected to trial on the incest charge because the venire excluded residents of the district in which the crime was alleged to have occurred, in violation of the Sixth Amendment to the United States Constitution. We are constrained to accept his argument.

The federal Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, ..." (U.S. Const., 6th Amend.) The exclusion of Riverside County residents from service on his jury in Butte County violates this requirement. (People v. Jones (1973) 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705.) "[W]hile the outer limits of the 'district' as used in the Sixth Amendment are flexible, encompassing greater or smaller areas as the Legislature deems wise, the mandate of the Sixth Amendment remains immutable. The district, however large or small, from which the jury is drawn must include the area wherein the crime was committed." (Id., at p. 554, 108 Cal.Rptr. 345, 510 P.2d 705.)

The People argue the offense of incest is an exception to the holding in Jones. They rely on People v. Martin (1922) 188 Cal. 281, 205 P. 121 ¹ which upheld a conviction for bigamy against the contention trial before a San Diego County jury was improper because the marriage and bigamous cohabitation occurred in Orange County. Martin is inapposite. It applied the California constitutional provision that " '[t]he right of trial by jury shall be secured to all, and remain inviolate.' " (Id., at p. 285, 205 P. 121; see now Cal. Const., art. I, § 16.) ² Here, defendant relies upon his federal constitutional right which is governed by People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705.

II

Defendant next contends the trial court erred in allowing the prosecution to show he engaged in numerous uncharged criminal sex acts with his granddaughter and daughters. Defendant admits the testimony is relevant, but argues it was "overwhelmingly prejudicial" as a matter of law. His argument addresses only one side of the admissibility equation: is the "probative value ... substantially outweighed by the probability that ... admission will ... create substantial danger of undue prejudice ...." (Evid.Code, § 352.)

Evidence of uncharged offenses presents a generic prospect of undue prejudice which has created analytical difficulties in the field of sex offenses. (See, e.g., People v. Wills-Watkins (1979) 99 Cal.App.3d 451, 457-459, 160 Cal.Rptr. 289 (conc. opn. of Kaus, P.J.).) The relevancy of such evidence may be predicated on the ground such a person is more likely to have committed the offense on the occasion charged because of his bad character or disposition to do the acts. Evidence is inadmissible on such a ground because it is an instance of undue prejudice not substantially outweighed by probative value recognized by statute. (See Evid.Code, § 1101; People v. Thomas (1978) 20 Cal.3d 457, 464, 143 Cal.Rptr. 215, 573 P.2d 433.)

However, when the uncharged offense evidences the emotion of sexual passion toward a particular individual the statutory exclusion is inapplicable. (See People v. Sylvia (1960) 54 Cal.2d 115, 119-120, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Stanley (1967) 67 Cal.2d 812, 816, 63 Cal.Rptr. 825, 433 P.2d 913; 2 Wigmore, Evidence (Chadbourne rev. ed. 1979) § 398, especially fn. 1, pp. 446-447 (Cal. cases collected).) Such evidence tends to prove defendant would act to realize his desire on the occasion of the charged offense (id., at § 399) and is not dependent upon defendant's bad character or his disposition to do wrongful acts.

Defendant was charged with the final act of incest with daughter Ar. and two lewd acts on the body of L.L., his granddaughter. He moved in limine to exclude evidence of uncharged sex acts with his daughters L.M., Al. and Ar., and with L.L., his granddaughter. The prosecution opposed the motion on the ground similarities in the sexual conduct of defendant with each of the females warranted admission of the evidence under a theory of modus operandi. The trial court denied the motion based on the prosecution's offer of proof of similarities. ³

In light of our resolution of other contentions of error we must evaluate the admissibility of the challenged evidence with respect to the one lewd act conviction (fixed by its proximity to Christmas), which is unchallenged save by this evidentiary contention. If the evidence is admissible to prove this offense, the conviction must be affirmed as it is not tainted by the errors confined to the other convictions.

We first examine the testimony of the granddaughter, L.L., concerning other uncharged acts of sexual intercourse. While generally admissible under the modus operandi theory, this evidence must first surmount the obstacle " 'the trier of fact is not aided by evidence of other offenses where that evidence is limited to the uncorroborated testimony of the prosecuting witness.' " (People v. Thomas, supra, 20 Cal.3d at p. 469, 143 Cal.Rptr. 215, 573 P.2d 433, quoting from People v. Stanley, supra, 67 Cal.2d at p. 817, 63 Cal.Rptr. 825, 433 P.2d 913.) Considered in a vacuum, L.L.'s testimony cannot survive this test. However, as distinguished from Stanley, her testimony is corroborated through the evidence of her grandfather's behavior with her aunts. If this evidence is admissible it provides significant corroboration of L.L.'s testimony.

Usually, modus operandi is employed to establish the identity of the perpetrator of the offense. (See e.g., People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.) Its use may also support the credibility of a witness in a sex crime case (see People v. Haslouer (1978) 79 Cal.App.3d 818, 145 Cal.Rptr. 234) by corroborating the details peculiar to the offenses. Thomas endorsed corroboration as a valid basis of admission but rejected the testimony as too remote. ⁴ (People v. Thomas, supra, 20 Cal.3d at p. 466, 143 Cal.Rptr. 215, 573 P.2d 433.) However, as with the issue of identity, there must be sufficient minimally distinctive shared marks between the acts to lend credibility to the theory of modus operandi. ⁵ (See Thomas, at pp. 468-469, 143 Cal.Rptr. 215, 573 P.2d 433; also see People v. Pendleton (1979) 25 Cal.3d 371, 158 Cal.Rptr. 343, 599 P.2d 649.)

Thornton holds admission of evidence of uncharged sex crimes is proper to show the identity of the defendant when common factors with "some degree of distinctiveness tend to raise an inference of identity and thereby invest other-crimes evidence with probative value." (Id., 11 Cal.3d at p. 756, 114 Cal.Rptr. 467, 523 P.2d 267.) The inference must be strong enough to outweigh any prejudicial effect. The strength of the inference is evaluated by consideration of "(1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks." (Ibid.) The same analytic method is appropriate in this context.

We find a multiplicity of distinctive similarities between the defendant's charged sexual conduct and his sexual conduct on other occasions with the complaining witnesses and his other daughters. His modus operandi included: (1) first intercourse with his wards at the age of six to seven; (2) use of Vaseline for coital lubrication when they were young; (3) the same state of disrobement for the participants; (4) a propensity for one coital position; (5) a similar frequency of intercourse in each relationship; (6) arranging for opportunity by sending his wife on errands; (7) use of a salt water douche as a means of birth control after the onset of puberty; and (8) cessation of the relationship when the girls reached 17 years of age. These distinctive shared marks raise a sufficiently strong probative inference to warrant the admission of the other-crimes evidence offered to show modus operandi. ⁶

Finally, was the conjunction of L.L.'s testimony and the corroboration of her aunts in the aggregate substantially more unduly prejudicial than probative? In this balance "if the probative value ... is strong or substantial, the weighing process points toward admission of the evidence, even though there is danger of prejudice to the opponent." (1 Jefferson, Cal.Evidence Benchbook (Cont.Ed.Bar 1982) p. 589.) Here, the evidence of other crimes, considered as a whole, had...