People v. Covert

• Decision Date: 02 March 1967
• Docket Number: Cr. 4135
• Citation: 249 Cal.App.2d 81,57 Cal.Rptr. 220
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Don Jean COVERT, Defendant and Appellant.

Page 220

57 Cal.Rptr. 220

249 Cal.App.2d 81

The PEOPLE of the State of California, Plaintiff and Respondent, v. Don Jean COVERT, Defendant and Appellant.

Cr. 4135.

Court of Appeal, Third District, California.

March 2, 1967.

Rehearing Denied March 28, 1967.

Hearing Denied April 26, 1967.

Frederick H. Ebey, court appointed counsel, Watsonville, for appellant.

Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Daniel J. Kremer, and Arnold O. Overoye, Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Associate Justice.

A jury found defendant guilty of an act of incest with his daughter. He appeals from the judgment. Primary question on appeal is the propriety of evidence of similar sexual activity between the defendant and an older daughter.

The prosecution's case consisted of the testimony of the 16-year-old prosecutrix and her 19-year-old married sister. Each described parallel histories of years of sexual molestation by their father, culminating in acts of copulation. These activities took place in the family home. All three were present during some of these events. Both girls described occasions of submission to their father's threats of physical harm. On the night of the charged offense, the defendant's wife (stepmother of the girls) was in the hospital. On that night, the prosecutrix testified, she submitted to her father at knifepoint.

Defendant took the stand. His defense consisted of an alibi, in which he was corroborated by his brother. The defense elicited evidence that the prosecutrix had engaged in unruly behavior and had become vindictive because defendant and his wife had subjected her to disciplinary measures. On cross-examination defendant denied misconduct with the prosecuting witness. The defense did not attack the testimony of the elder daughter.

California decisions exclude evidence of similar offenses which is relevant only to prove the defendant's bad character, that is, his criminal disposition, because its probative value is outweighed by its prejudicial effect. (People v. Westek, 31 Cal.2d 469, 476, 190 P.2d 9; additional cases cited Witkin, Cal.Evidence (2d ed.) p. 299; see 1 Wigmore, Evidence (3d ed., 1940) pp. 642--646; cf. Cal.Evidence Code, § 1101, applicable to cases tried in 1967 and thereafter; Cal.Evidence Code Manual (Cont.Ed.Bar) pp. 205--206.) The general prohibition is tempered by numerous exceptions. The concept underlying these exceptions is authoritatively described in People v. Peete, 28 Cal.2d 306, 314--315, 169 P.2d 924, 929: 'It is settled in this state, however, that except when it shows merely criminal disposition (citations), evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. 'The general tests of the admissibility of evidence in a criminal case are: * * * does it tend logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not whether the other crime be similar in kind or not, whether it be part of a single design or not."

As applied to sex offenses, the rule had recent expression in People v. Ing, 65 A.C. 650, 55 Cal.Rptr. 902, 422 P.2d 590, decided January 27, 1967. The defendant in that case was a doctor, charged with rape through administering narcotics. After the prosecutrix testified, three women related similar offenses. Each testified that she had seen the defendant at his office as a patient, that he gave her one or more injections and then had intercourse with her and that she would not have had intercourse with him had she not been under the influence of drugs. The Supreme Court stated (65 A.C. at p. 659, 55 Cal.Rptr. at p. 907, 422 P.2d at p. 595): 'In view of the striking similarities between the other offenses and the ones charged the evidence was relevant on the question of a common scheme or plan to commit rape and was properly admitted. (People v. Whitehorn, 60 Cal.2d 256, 262--263, 32 Cal.Rptr. 199, 383 P.2d 783; People v. Sylvia, 54 Cal.2d 115, 119--120, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Wojahn, 169 Cal.App.2d 135, 146--148, 337 P.2d 192; People v. Sullivan, 96 Cal.App.2d 742, 744 et seq., 216 P.2d 558; People v. Cassandras, 83 Cal.App.2d 272, 279--282, 188 P.2d 546.) The fact that one of the women was raped in 1949 affected the weight of the evidence rather than its admissibility. (People v. Hernandez, 209 Cal.App.2d 33, 40, 25 Cal.Rptr. 640; People v. Kearns, 149 Cal.App.2d 113, 121, 307 P.2d 1015; People v. Burns, 109 Cal.App.2d 524, 538, 241 P.2d 308, 242 P.2d 9.)'

In the present case the prosecution offered the sister's testimony and the court received it on the theory that it evidenced a common scheme or plan. The California decisions do not clearly indicate whether Common scheme or plan is an independent fact in issue or, on the contrary, a subordinate objective of proof, whose relevance depends upon the presence of some other actual issue, such as mistaken identity or claimed innocent intent. ¹ Here, where the defense had not commenced presentation of its case at the time the prior offenses were offered, no such issue had yet appeared.

On this score there is a wide divergence among the California decisions considering admissibility of repeated sex offenses. A number of decisions adopt the view that Common plan or scheme in the commission of repeated sex offenses with different persons is not an independent objective of proof; that some other disputed issue must be raised before the common plan or scheme is relevant; that if common plan or scheme is irrelevant (i.e., having no purpose other than proof of criminal disposition), neither is evidence of prior offenses offered to prove it. (People v. Anthony, 185 Cal. 152, 157, 196 P. 47 (disapproved on other grounds, People v. Lucas, 16 Cal.2d 178, 182, 105 P.2d 102, 130 A.L.R. 1485); People v. Baskett, 237 Cal.App.2d 712, 717--719, 47 Cal.Rptr. 274; People v. Buchel, 141 Cal.App.2d 91, 96, 296 P.2d 113; People v. Huston, 45 Cal.App.2d 596, 597, 114 P.2d 607; People v. Asavis, 22 Cal.App.2d 492, 494, 71 P.2d 307. ²

Our present defendant relies heavily on these decisions, particularly People v. Baskett, supra. There the defendant took the stand to deny the charge of lewd conduct with his granddaughter. In rebuttal the prosecution called the defendant's two daughters, who testified that their father had engaged in similar conduct with them years earlier. The appellate court reversed the conviction, declaring the evidence of similar offenses inadmissible. The Baskett opinion might be summarized thusly: There was no evidence of a common plan in the sense of a single scheme to perform these separate acts; in its other sense 'common plan' describes Modus operandi and provides a means for identifying the defendant as the perpetrator of the crime, provided that identity is in issue; furthermore, it may negative a claim of innocent intent, provided the defendant makes that claim; since Baskett had simply denied the crime and claimed neither mistaken identity nor innocent intent, evidence of his earlier offenses proved nothing except his criminal disposition, hence was inadmissible.

Antedating People v. Ing, supra, and in contrast to the Baskett and similar decisions, is a group of cases avowedly or implicitly embracing the position that 'common plan or scheme' is a fact in issue, tending to prove commission of the sex crime charged without apparent regard for the specific issues raised in the trial: People v. Whitehorn (1963) 60 Cal.2d 256, 262--263, 32 Cal.Rptr. 199, 383 P.2d 783; People v. Sylvia (1960) 54 Cal.2d 115, 119--120, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Minkowski (1962) 204 Cal.App.2d 832, 23 Cal.Rptr. 92; People v. Malloy (1962) 199 Cal.App.2d 219, 231--233, 18 Cal.Rptr. 545; People v. Crisafi (1960) 187 Cal.App.2d 700, 707, 10 Cal.Rptr. 155; People v. Wojahn (1959) 169 Cal.App.2d 135, 147, 337 P.2d 192; People v. Wertz (1956) 145 Cal.App.2d 395, 399, 302 P.2d 613; People v. Sullivan (1950) 96 Cal.App.2d 742, 745--747, 216 P.2d 558; People v. Cassandras (1948) 83 Cal.App.2d 272, 188 P.2d 546.

As the admissibility concept is described in People v. Peete, supra, the issues arising in the particular trial determine the relevance, hence the admissibility, of evidence of prior offenses. One writer puts it: 'There is no fixed category * * * of relevant facts in proof of which other crimes may be shown as circumstantial evidence.' (Witkin, Cal.Evidence (2d ed.) p. 300.) Section 1101(b) of the new Evidence Code lists some examples of trial issues which unlock the door to such proof, such as 'motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident * * *.' ³

'Common scheme or plan' and similar phrases supply a frequent ticket of admissibility. Unfortunately the ticket has often permitted admittance without heed to the actual issues presented to the prosecution by the elements of the crime or by the claims of the defense. Several decisions point out that Scheme or plan are words of several meanings. They may refer, first, to a plot to commit both the offense charged and the prior offense offered in evidence; second, to Modus operandi, a characteristic method employed by a defendant in the performance of repeated criminal acts. (People v. Baskett, supra, 237 Cal.App.2d at p. 717, 47 Cal.Rptr. 274; People v. Chambers, 231 Cal.App.2d 23, 30--31, 41 Cal.Rptr. 551; see also People v. Ollado, 246 A.C.A. 686, 696, 55 Cal.Rptr. 122 (dissent).) Professor Wigmore points out that where intent is not in issue there must exist not merely a similarity of results, but 'such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' (2...