People v. Deletto

Decision Date27 September 1983
Docket NumberCr. 12118
Citation147 Cal.App.3d 458,195 Cal.Rptr. 233
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. John William DELETTO, Defendant and Appellant.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Lisa Short and Gregory J. Roussere, Deputy State Public Defenders, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Ruth M. Saavedra, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 1981, an information was filed in Shasta County Superior Court charging defendant with committing a lewd or lascivious act upon a child (Pen.Code, § 288) as alleged in count I, oral copulation with a person under 14 years of age and ten years younger than he (Pen.Code, § 288a, subd. (c)) as alleged in count II, sodomy with a person under 14 years of age and ten years younger than he (Pen.Code, § 286, subd. (c)) as alleged in count III, and unlawful sexual intercourse (Pen.Code, §§ 261.5) as alleged in count IV. The information further alleged that each act was committed "on or about the 1st day of June to the 30th day of August, 1980."

Trial by jury began March 25, 1982. We discuss the evidence in some detail in the course of this opinion. At this point, suffice it to say that during the months of June through August of 1980 defendant lived in a residence in Shingletown, California with his six-year-old daughter (the victim), his ex-wife Barbara Lee Chase, his parents Arthur and Louise Thompson, and his friend and ex-wife's current husband, Wayne Chase.

Defendant's daughter, who was eight years old at the time of trial, testified that defendant committed acts of sexual intercourse and sodomy as charged in the information. She also testified that defendant committed two separate and distinct acts of oral copulation with her, although the information alleged only a single act.

The court allowed two foster mothers, who had custody of the minor after the summer of 1980, to testify as to certain deviant behavior of the minor.

Defendant's defense was that he did not engage in any sexual conduct with the minor; that Wayne Chase, a previously convicted sex offender, had committed the acts in question; and that the minor's foster mothers had participated in fabricating the minor's testimony in order to get custody of her.

The trial court did not give an instruction, such as CALJIC No. 17.01, requiring the jury to agree unanimously that defendant Following instructions, the jury repaired to the jury room, deliberated for 25 minutes, and returned to the courtroom with verdicts finding defendant guilty on all counts.

had committed the same act in order to convict. The trial court gave CALJIC No. 4.71, allowing the jury to convict if it found a crime was committed "on or about" a certain date.

Defendant was sentenced to twelve years and four months in state prison.

On appeal defendant contends that (1) his conviction for oral copulation must be reversed because (a) the trial court failed to instruct, sua sponte, with CALJIC No. 17.01, and (b) the trial court erroneously instructed the jury with CALJIC No. 4.71 rather than with CALJIC No. 4.71.5 or its equivalent; (2) his conviction for lewd and lascivious conduct is multiply defective and must be reversed, the Attorney General has so conceded; (3) the trial court erred in admitting evidence of the victim's behavior following the alleged offenses; (4) the case must be remanded in order for the trial court to state reasons for its sentencing choices, the Attorney General has so conceded; and (5) the trial court erroneously calculated defendant's presentence custody credit.

We conclude the failure to give CALJIC No. 17.01 and the giving of CALJIC No. 4.71 was error but that the error is harmless beyond a reasonable doubt. We further hold the trial court did not err in admitting evidence of the victim's deviant conduct. Finally we agree with the Attorney General that the conviction on count I for lewd and lascivious conduct must be reversed. Accordingly, we reverse count I, affirm counts II, III and IV, and remand to the trial court for resentencing.

DISCUSSION

I

Defendant first contends his conviction on count II for oral copulation (Pen.Code, § 288a, subd. (c)) must be reversed because the trial court failed to instruct the jury, sua sponte, with CALJIC No. 17.01 1 to the effect that they must all agree on which of the two acts of oral copulation testified to by the minor forms the basis for the conviction. Defendant also contends the trial court erred in giving CALJIC No. 4.71, 2 instructing the jury it is not necessary to show the crime was committed on a specific date, rather than CALJIC No. 4.71.5, 3 which requires jury unanimity as to a specific act. The People acknowledge that the failure to give CALJIC No. 17.01 was error. 4 (People

                v. Diedrich (1982) 31 Cal.3d 263, 281, 182 Cal.Rptr. 354, 643 P.2d 971;  People v. Williams (1901) 133 Cal. 165, 168, 65 P. 323;  People v. Castro (1901) 133 Cal. 11, 12-13, 65 P. 13;  People v. McNeill (1980) 112 Cal.App.3d 330, 336, 169 Cal.Rptr. 313;  People v. Alva (1979) 90 Cal.App.3d 418, 426, 153 Cal.Rptr. 644.)   Although not specifically conceded by the People, it was also error to give CALJIC No. 4.71, rather than CALJIC No. 4.71.5, in the circumstances of this case.  (People v. Gavin (1971) 21 Cal.App.3d 408, 417-418, 98 Cal.Rptr. 518;  see People v. Barney (1983) 143 Cal.App.3d 490, 497, 192 Cal.Rptr. 172.)   However, the People contend the instructional error was not prejudicial and does not require reversal.  We agree
                
A

We address first the failure to give CALJIC No. 17.01. There is no question but that the minor described two separate acts of oral copulation. The minor testified that (1) defendant made oral contact with her genital area, and (2) defendant placed his penis in her mouth and ejaculated. Both acts occurred during the summer of 1980 at the Shingletown residence; no further specificity as to time appears on the record.

The starting point for our analysis is People v. Diedrich, supra. There, a former member of the Orange County Board of Supervisors was convicted of bribery. (Pen.Code, § 165.) Count I of the information charged defendant with violation of Penal Code section 165 during the period January to April 1973. At trial, the People put on evidence of two separate instances of bribery that occurred during the applicable period of time. On one occasion, defendant and his personal friend and campaign finance chairman, one Rose, met with land developers at the Jolly Fox restaurant. Evidence suggested that, at the restaurant meeting, defendant offered to help the land developers remove a parcel from an agricultural preserve if the developers were willing to purchase a parcel of raw land, owned by Rose, for $150,000 over market price. Other evidence suggested that, during the same three-month period of time, defendant's personal attorney, one Remington, was hired by the developers for a substantial fee never justified by services actually rendered by the attorney.

At trial, defendant requested an instruction informing the jury that they must unanimously agree upon at least one particular act in order to convict on count I, and the instruction was refused. The Supreme Court held that the refusal of the proffered instruction, or the failure to give CALJIC No. 17.01, constituted error. (People v. Diedrich, supra, 31 Cal.3d at p. 282, 182 Cal.Rptr. 354, 643 P.2d 971.) The court then addressed the possible prejudicial effect of the omission in instructions as follows: "The next question is whether the error was prejudicial. We feel bound to hold that it was. This is not a case where the jury's verdict implies that it did not believe the only defense offered. Diedrich's defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were 'explained.' Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial." (Id., at pp. 282-283, 182 Cal.Rptr. 354, 643 P.2d 971, emphasis added.)

We view the instant case as one falling within the exception noted in dictum in Diedrich, to wit, one in which the jury's verdict implies that it did not believe the only defense offered. We can discover nothing in the instant record by way of evidence or argument by which the jury could have found that defendant committed one act of oral copulation but not the other.

Preliminarily, we turn to the prosecution's evidence. This is not a case in which different witnesses testified as to one incident but not the other or where different items of real evidence were introduced to prove one act but not the other, so that the jury might have distinguished between the credibility of different witnesses or the Nor is this a case in which the recollection of any prosecution witness is better with respect to one incident than the other. On cross-examination, defense counsel elicited testimony from the minor indicating she couldn't remember when she moved from Shingletown or whether she still lived there, nor could she remember when she first told anybody about "what went on between you and your John." While this testimony tended to show that the minor's recollection of events was flawed, the testimony gave the jury no basis upon which to discriminate between the two incidents.

weight to be given various items of real evidence. (Compare People v. Ferguson (1982) 129 Cal.App.3d 1014, 1021, 181 Cal.Rptr. 593 [failure to give CALJIC No....

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