People v. Callan

• Decision Date: 25 November 1985
• Citation: 220 Cal.Rptr. 339,174 Cal.App.3d 1101
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Steven CALLAN, Defendant and Appellant. D001693. Crim. 15945.

Page 339

220 Cal.Rptr. 339

174 Cal.App.3d 1101

The PEOPLE, Plaintiff and Respondent, v. Mark Steven CALLAN, Defendant and Appellant.

D001693.

Crim. 15945.

Court of Appeal, Fourth District, Division 1, California.

Nov. 25, 1985.

As Modified Dec. 5, 1985.

Review Denied March 19, 1986.

Charles R. Khoury, Jr., Valley Center, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Keith I. Motley and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

BUTLER, Associate Justice.

Mark Steven Callan was convicted by jury of four counts of lewd and lascivious conduct with a child under the age of 14 years (Pen.Code, § 288, subd. (a) ( § 288(a)). After a diagnostic test under section 1203.03, the court granted Callan four years probation conditioned on, among others, serving 270 days in county jail and registering as a sex offender pursuant to section 290. Callan appeals, contending: (1) two counts are barred by the statute of limitations; (2) evidence of the uncharged acts directed at the victim's younger sister were prejudicially admitted into evidence; (3) the prosecutor failed to elect which acts were being relied upon to support the charges; and (4) instructional error. We shall reverse one count as time barred and affirm the remainder of the judgment.

FACTS

As Callan does not challenge the sufficiency of the evidence, we briefly state the facts.

On May 27, 1983, Angelia J. (Angie), 12 years old, told her best friend and Mrs. Christian, a teacher at her school, about two recent incidents of Callan molesting her. On May 26, 1983, and two weeks before, Angie had been driving with Callan when she asked if she could steer the car. Angie got in his lap and started driving. Callan put his hands on her legs and then rubbed her crotch area. Angie kept moving his hands away but he moved them back. Callan told her not to worry. Nobody else was in the car during the first incident, but her sister Misty J. (Misty), 10 years old, and her seven-year-old step-brother, were in the car May 26, 1983.

Deputy Sheriff John Neil Christiansen was called to the school to talk with Angie about a possible ongoing child molest. After an initial period of fear and embarrassment, Angie confirmed her story about the two specific instances in the family car and then began relating episodes of lewd acts Callan committed with her and her younger sister over the past six years. Callan had lived with her mother, Mary J., without being married, since 1976 in the Valley Center area of San Diego County. During this time, Callan had continuously touched her pelvic area and had fondled her in the breast area. Callan would often put her to bed and fondle her both on top of her nightgown and underneath while exposing his genitals and making her touch his penis. She mentioned he often placed his finger in her vagina. Angie stated the same acts Callan committed on her were committed on her sister Misty. Angie explained she had been afraid to say anything before because Callan had told her not to but she decided to tell someone because she was mad about the recent incidents in the car.

Christiansen separately interviewed Mary J. and Callan. Mary J. initially said she had absolutely no knowledge of any acts by Callan and then said Angie had told her the night before that these acts were occurring but Mary was not sure who to believe. Callan stated, "All I can say, is this is a definite case of control over lust." He said Angie was very well developed for her age, was very promiscuous and he thought the story was fabricated by Angie in order to get out of the household and go live with her natural father. The only times he may have touched her or her sister were when he was innocently playing with them. Callan left Christiansen's office laughing and stating, "It's my word against hers anyway."

The case was then turned over to Alice Pollero, a social worker with Child Protective Services, who interviewed Angie and Misty on June 1, 1983. In a separate interview, Angie confirmed her previous stories and also mentioned a specific incident when she and Misty were taking a shower and Callan, while showing them how to wash between their legs, rubbed them between their legs for some time and stuck his finger up her vagina. Angie was afraid of Callan because of the sexual abuse and because he whipped her hard enough to leave bruises.

Callan was charged in an amended information with five felony counts: count one charged a lewd and lascivious act under section 288(a), occurring between May 10, 1983 and May 19, 1983; count two alleged a lewd and lascivious act under section 288(a), committed on or about May 25, 1983; count three charged a lewd and lascivious act under section 288(a) occurring between November 26, 1977 and August 31, 1978; count four alleged a lewd and lascivious act under section 288(a) occurring between September 1, 1978 and June 1, 1979; and count five charged unlawful penetration of the genital and anal openings of another person by a finger under section 289, subdivision (a), occurring between November 26, 1977 and November 26, 1978.

September 13, 1983, the trial began. Angie testified consistent with her pretrial interview statements. Her sister Misty was permitted to testify to similar uncharged sex acts directed at her by Callan. Angie's mother and Callan testified in defense. Mary J. stated Angie wished to return to her natural father and had lied quite often to get her way and Misty followed Angie's lead. Callan denied any intentional sexual acts and explained any touching as accidental and innocent, the inescapable result of playing with and assisting Mary J. in the raising of the girls. Callan admitted resting his hands on Angie's thighs during the car-driving incidents, pinching Angie on the breast while teasing her about not needing a training bra, playing "pinch and giggle" where any part could be touched while horsing around, and "french kissing" the girls on occasion to calm them down when they became rowdy. He denied any sexual desire for the girls and stated he never intentionally rubbed or grabbed the girls in the genital area with such desire. Before instructions and closing arguments, the court granted Callan's section 1118.1 motion as to count five. The jury returned guilty verdicts on the remaining four counts.

Discussion

I

In a supplemental letter brief, Callan contends counts three and four are barred by the statute of limitations (Pen.Code, § 800) and the convictions on those counts should be reversed. A substantive statute of limitation question is properly raised at any time. (People v. Chadd (1981) 28 Cal.3d 739, 757, 170 Cal.Rptr. 798, 621 P.2d 837.) The People concede count three is time-barred but argues count four falls within the limitation period for section 288(a). We agree.

Count four charged Callan with lewd and lascivious conduct between September 1, 1978 and June 1, 1979. At trial Angie could not remember the exact dates of his conduct. Rather, the dates for the specific acts were calculated by reference to Angie's birthday, her residence and her grade in school. She was born on November 26, 1970, making her 12 years old and in the seventh grade at the time of trial. She testified she was in the second grade, living in a house on Cobb Lane in Valley Center, was 7 or 8, when Callan touched her on three occasions. The first incident shown by the evidence to fall under count four was after her birthday on November 26, 1978.

Count four was filed by amended information September 7, 1983. Relying on People v. Gordon (1985) 165 Cal.App.3d 839, 849-852, 212 Cal.Rptr. 174, Callan argues prosecution on count four was barred on September 1, 1981, because section 288(a) was subject to a three-year statute of limitations in 1978. In Gordon, however, the court's analysis referred to a section 286, subdivision (b)(2) violation and not a section 288(a) violation, the important difference being the Legislature amended section 800 in 1980, effective January 1, 1981, to provide a five-year statute of limitations for a prosecution of a violation of section 288. (Stats.1980, ch. 1307, § 2, pp. 4422-4423.) In 1981 the Legislature again amended section 800, effective January 1, 1982, lengthening the statute of limitations for prosecution of section 288 violations to six years. These amendments apply to count four because they were enacted before the old statutory periods respectively expired. (People v. Gordon, supra, 165 Cal.App.3d 839 at p. 851, 212 Cal.Rptr. 174; People v. Eitzen (1974) 43 Cal.App.3d 253, 266-267, 117 Cal.Rptr. 772.) Because the 1980 amendment was effective January 1, 1981, before the expiration date of the old statutory period, the statute of limitations was extended to September 1, 1983 (five years) and again extended under the 1981 amendment to September 1, 1984 (six years). The filing of the amended information on September 7, 1983, was well within the limitation period.

Because we reverse on count three, we only discuss Callan's remaining contentions with respect to counts one, two and four.

II

Angie's younger sister Misty testified Callan often touched her breasts and rubbed his hand around her "peepee," on top of her clothes and underneath them. She said he would unzip his pants, take it out, and tell her to touch his "wiener." One time she saw "white stuff" come out of his "wiener". Callan argues it was prejudicial error for the court to allow in evidence this testimony concerning his sexual acts directed at Misty; there was no proper purpose for the evidence and it was prejudicial under Evidence Code section 352.

At the outset of trial, outside the jury's presence, the court heard preliminary arguments on the admissibility of Misty's testimony. The prosecution represented the testimony would show common design or plan, intent, and a clear connection between the offenses charged involving Angie and the uncharged acts...