People v. Cameron

• Decision Date: 16 December 1975
• Docket Number: Cr. 1985
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jack Neil CAMERON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 44

126 Cal.Rptr. 44

53 Cal.App.3d 786

The PEOPLE, Plaintiff and Respondent, v. Jack Neil CAMERON, Defendant and Appellant.

Cr. 1985.

Court of Appeal, Fifth District, California.

Dec. 16, 1975.

Hearing Denied Feb. 11, 1976.

William J. Owen, Sacramento, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Charles P. Just and W. Scott Thorpe, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THOMPSON, ^* Associate Justice (Assigned).

Defendant herein was convicted by a jury of violation of section 273d of the Penal Code (infliction by a husband of corporal injury upon his wife). Defendant admitted a prior conviction of receiving stolen property (Pen.Code § 496). Defendant was sentenced to state prison. He appeals.

The domestic situation from which this criminal charge arose is unremarkable. Defendant Jack Cameron and his wife Joyce, a bride of one month, were participating is a social affair with another couple who were having dinner with them at the Cameron apartment. Shortly after midnight Jack and Joyce offered to drive their friends, the Walkers, back to their motel. On the way defendant stopped his car and was unable to start it. Joyce and her friends decided to take a taxi home while Jack remained with his vehicle to repair it.

Joyce went to bed and fell asleep. At about 2:00 a.m. she was awakened by her husband who had seized her by a breast and was twisting it. Jack told Joyce that he intended to hurt her and thereupon slapped and kicked her and threw her off the bed. He told Joyce that he had once knocked a woman's teeth out because she talked too much and since she (Joyce) did not listen he was going to have to 'fix' her ears so she would never hear again. Defendant continued to strike and shake Joyce and kicked her after he had jerked her off the bed onto the floor. In the course of the melee Joyce's nose was broken, her left ear was cut requiring considerable surgical intervention. Her face and body bore marks of trauma.

The affray concluded by defendant's forcibly dragging his wife into the bathroom and placing her under the shower after having torn off her nightgown.

Joyce's eleven year old daughter, who had been awakened by the commotion, ran next door to get help for her mother. The authorities were called and defendant was arrested.

Defendant at all times contended that he had slapped his wife only once and the remainder of the injuries had been caused by her falling against a sewing machine.

There was testimony that both husband and wife had been drinking but the arresting officers concluded that neither was intoxicated.

Defendant urges a number of errors assertedly committed during the course of the trial. None of these procedural errors is of sufficient merit to warrant any extended discussion. For example, his first claim of error is that the prosecutor was guilty of prejudicial misconduct during his closing argument. We do not reach the question as to whether the failure to object to such alleged misconduct constitutes a waiver for the reason that the so-called misconduct did not in fact occur. The prosecutor's argument at all times related to the evidence. To illustrate, one claimed instance of misconduct is the following statement made by the prosecutor in his closing argument:

'If you believe Mrs. Cameron and all the evidence supports her story, you are not going to find that she was just merely unlawfully touched by somebody, you are going to find that the person is a wife beater. I think that's what the case is all about, ladies and gentlemen.'

The prosecutor's comment above quoted was clearly permissible. The other asserted errors are of no more merit. In not a single instance did the prosecutor indicate that his opinions were based upon anything other than the evidence which the jury had heard. Broad discretion is vested in the trial court to permit arguments by counsel that are based upon counsel's view of the evidence and that discretion was not abused here. (People v. Beivelman (1968) 70 Cal.2d 60, 76--77, 73 Cal.Rptr. 521, 447 P.2d 913.)

Another procedural error asserted by defendant is that he was denied effective assistance of counsel because his counsel did not raise the issue as to the constitutionality of section 273d of the Penal Code and that therefore he is barred from raising the issue on appeal. The argument is fallacious. Since the constitutionality of a statute goes to the jurisdiction of the court it is an issue which may be raised on appeal and appellate counsel has properly raised it. It is an issue which goes to the heart of this appeal and we shall discuss it at length.

Defendant also asserts that the trial court improperly excluded relevant evidence, the relevant evidence being that the victim in this case had been assaulted by a prior spouse who had also broken her nose. There is no possible relevance to testimony as to prior assaults upon a victim unless it can be shown that the victim was the aggressor. Although defendant made a feeble attempt to show that his victim was the aggressor in this instance, he made no offer of proof that in her prior encounter with her former husband Joyce had initiated the fight. It was apparently defendant's theory that he should be permitted to show that, since Joyce's nose had been broken previously, less force would be required to break it a second time. The trial court properly applied the principle that a wrongdoer in criminal cases as in civil torts takes his victim as he finds him.

Defendant's chief reliance for a reversal is his assertion that Penal Code section 273d is unconstitutional. ¹ He makes a threefold argument in support of his contention: (1) that said section 273d denies a defendant equal protection of the law in that it applies only to married men who assault their wives and not to unmarried men who assault their paramours nor to wives who assault their husbands; (2) that the definition of the crime in Penal Code section 273d is impermissibly vague; and (3) that the punishment provided for the crime is cruel and unusual.

Dr. Samuel Johnson once observed that 'nature has given woman so many advantages the law ought to give her no more'. This doubtful premise has been given new life for in recent times we have observed many legislative and administrative attempts to asexualize many economic and social regulations which have heretofore established separate considerations based on sex, some initially intended to protect women in physical or moral situations. For example, we have witnessed the enactment of certain laws barring women from work either upon the basis that it was too arduous for the 'weaker' sex or was 'unladylike'. In striking down such laws many ancient concepts of the role of women in society have been examined and found wanting. The Federal Civil Rights Act of 1964 and the rules and regulations of the Equal Employment Opportunity Commission reject the old stereotypes of what is deemed a proper consideration in determining whether a particular employment in suitable for women. Such cases as Sail'er Inn, Inc. v. Kirby (1971), 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 have defused the notion that the protection of women's morals furnishes an adequate guideline for discrimination in employment. The case of Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, also makes it clear that any classification based solely upon sex is suspect, the more so in the area of morals or muscles.

However, in the instant case we are not confronted with discrimination relative to employment or morality. We are rather concerned with one of the most troublesome and yet most fundamental relationships in our social structure, marriage, and while, of course, one marriage partner is of necessity a female, the more fundamental consideration is that she is a wife and oftentimes a mother. The voluminous laws relating to such matters arising out of the marital relationship such as property rights, child custody, etc., demonstrate the vital interest of the state in marriage relationships. The observable effect of broken homes upon juvenile delinquency emphasizes society's concern with the preservation of marriage.

Justice Douglas observed in Skinner v. Oklahoma, 316 U.S. 535 at 540, 62 S.Ct. 1110 at 1113, 86 L.Ed. 1655:

'(A) State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining 'its restrictions to those classes of cases where the need is deemed to be clearest'.'

In the case of Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, the following statement appears at p. 21, 95 Cal.Rptr. at p. 342, 485 P.2d at p. 542: 'Where the evil which the Legislature seeks to prevent can be directly prevented through nondiscriminatory legislation, and where the class singled out by the Legislature has no necessary connection with the evil to be prevented, the statute must be struck down as an invidious discrimination against that class.'

We think the conclusion inescapable that wives as an object of abuse by their spouses are a class distinctly set apart by the conditions under which their abuse customarily occurs. The first and most obvious distinction is that women are physically less able to defend themselves against their husbands than vice versa. National statistics show that the average adult male is 28 pounds heavier and five inches taller than the average adult female. ² No competent prize fight manager would send a much smaller combatant into the ring against a much larger opponent, especially to face such opponent without the benefit of a referee or the restraining influence of an audience.

It is indisputable that the overwhelming number of encounters between husbands and wives take place...