People v. Dunnahoo

• Decision Date: 29 February 1984
• Docket Number: Cr. 43040
• Citation: 199 Cal.Rptr. 796,152 Cal.App.3d 561
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas DUNNAHOO, Defendant and Appellant.

Page 796

199 Cal.Rptr. 796

152 Cal.App.3d 561

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas DUNNAHOO, Defendant and Appellant.

Cr. 43040.

Court of Appeal, Second District, Division 3, California.

Feb. 29, 1984.

Hearing Denied May 24, 1984.

[152 Cal.App.3d 566] Rowan K. Klein, Los Angeles, under appointment by Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Edward T. Fogel, Jr., Mark Alan Hart and Patra C. Woolum, Deputy Attys. Gen., for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant and appellant Thomas Dunnahoo (Dunnahoo) appeals from a judgment following conviction by a jury of two counts of child molestation (Pen.Code, § 288a) and two counts of orally copulating a person under the age of 14 (Pen.Code, § 288a, subd. (c)). The information charged the offenses occurred between February 9 and August 8, 1980. Dunnahoo was sentenced to eight years in prison.

We have concluded that Dunnahoo had a fair trial under the circumstances of this case, and we therefore affirm the conviction with a sentence modification.

FACTUAL BACKGROUND

Rebecca and Tara, both five years old, lived with Dunnahoo in 1980 and were seven and a half years old at the time of trial. They testified to living in a bizarre sexual environment during their stay with Dunnahoo. He showed them pornographic magazines and films depicting naked males and females engaged in acts of oral copulation. The children were the subjects of movies taken by Dunnahoo wherein they were instructed to disrobe and to emulate the conduct shown in the films and to orally copulate each other.

Dunnahoo kept sexual "toys" in the form of a penis and vagina with fake hair and taught the girls how to play with them. They were instructed in a masturbation technique with the penis. Thereafter, Dunnahoo made Rebecca masturbate his penis until he ejaculated. Rebecca was directed to rub the toy vagina and then to rub herself the same way. Sometimes she was told to repeat the rubbing activity on Tara.

After striking the girls severely, he forced them to engage in oral copulation of his penis to an ejaculation.

In the early part of 1980, one Thomasina, who was about 15 years old at the time, moved into Dunnahoo's house for a place to live in exchange for housework, babysitting and helping with his film work. The films she worked on involved numerous pornographic films, which she edited and spliced. These films were shown in the presence of Rebecca and Tara. She also saw the fake sexual organs which Dunnahoo kept in a drawer and observed the girls play with them under his direction. She witnessed acts of oral copulation between Dunnahoo and Tara and other sexual touchings. Dunnahoo told her he was teaching the girls about the "birds and the bees." Eventually, Thomasina told the police what she had seen and the girls were removed from Dunnahoo.

DEFENSE

Dunnahoo took the mothers and the girls into his home when they needed a place to stay, and when the mothers left, Dunnahoo took care of the girls, Rebecca for only short periods of time. Thomasina lived with them too. He denied any of the sexual misconduct attributed to him, and claimed Tara was lying.

CONTENTIONS

Dunnahoo contends that (1) the trial court committed prejudicial error in failing to instruct the jury sua sponte regarding the effect of the "doctrine of election"; (2) he was denied effective assistance of counsel; and (3) the case must be remanded for sentencing as the trial court failed to state reasons for denying probation or for imposing a consecutive term and failed to award appropriate conduct credit.

DISCUSSION

1. No prejudicial error in trial court's failure sua sponte to instruct the jury on the effect of the "doctrine of election."

(a) Precedents revisited.

The fact situation herein presents yet another in a long line of cases, including People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 108 Cal.Rptr. 338; People v. Alva (1979) 90 Cal.App.3d 418, 153 Cal.Rptr. 644; People v. McIntyre (1981) 115 Cal.App.3d 899, 176 Cal.Rptr. 3; People v. Epps (1981) 122 Cal.App.3d 691, 176 Cal.Rptr. 332; and People v. Deletto (1983) 147 Cal.App.3d 458, 195 Cal.Rptr. 233) that have come down since People v. Castro (1901) 133 Cal. 11, 65 P. 13 and People v. Williams (1901) 133 Cal. 165, 65 P. 323, were decided by the Supreme Court in 1901. These cases deal with problems that arise when a violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged. This case is a variation on the same theme, involving as characterized by the Alva court, the "Castro-Williams principles." (People v. Alva, supra, 90 Cal.App.3d at p. 425, 153 Cal.Rptr. 644.) However, the most recent case in the line, People v. Gitchuway (1983) 146 Cal.App.3d 432, 194 Cal.Rptr. 141, has put a hitch in the evolved and accepted rationales. ¹

In the seminal Castro case, the defendant was charged with one count of rape on a specific date. The evidence disclosed four separate acts over several months, none occurring on the date specified.

The instructions permitted the jury to convict the defendant if any one of the acts were established beyond a reasonable doubt. In upholding the granting of a new trial, the Supreme Court stated that "[t]he state, at the commencement of the trial, should have been required to select the particular act upon which it relied .... This was not done; and even conceding that the failure to make such election at that time did not constitute error because of the want of demand upon the part of the defendant ..., when the case went to the jury, the court, in some form, should have directed their minds to the particular act of intercourse which it was incumbent upon the state to establish by the evidence, before a verdict of guilty could be returned against the defendant." (Emphasis added; People v. Castro, supra, 133 Cal. at pp. 12-13, 65 P. 13.)

Williams was a similar case of the same vintage wherein the defendant was charged with statutory rape and evidence of many uncharged sex acts was introduced. There, the jury was instructed that if it found that the defendant had sexual intercourse with the victim any time within three years prior to the filing of the indictment, it must find the defendant guilty.

In reversing, the Supreme Court adhered to the position it had enunciated a few months earlier in Castro stating: "[t]he jury were [sic] not even told that they must all agree that some specifically described act had been performed." (People v. Castro, supra, 133 Cal. at p. 168, 65 P. 13.) The court went on to question incredulously, "[a]nd how could [the defendant] defend when he was not informed as to what particular offense out of the hundreds testified to ... he was to be tried?" (Id., at p. 168, 65 P. 13.)

The cases involving variances between charge and proof continued to reach appellate courts following these two early Supreme Court cases, which courts attempted to give credence to the legislative intent as expressed in criminal statutes, and at the same time, to protect the rights of the accused to a fair trial.

The 1973 case of Moreno did not involve alleged unlawful sexual conduct. There, Moreno was tried on one count of resisting an officer, but evidence was introduced as to two incidents. The trial court refused to require an election and did not instruct the jury that it must unanimously agree as to which incident it found the defendant guilty of in order to convict.

The Moreno court reversed, concluding that "it was error for the trial court not to require an election by the prosecution before the case went to the jury or at least to give an instruction to the jury that 12 of the jurors must unanimously agree as to the commission by the defendant of one of the acts of resistence ...." (First emphasis added; id., at p. 9, 108 Cal.Rptr. 338.)

In Alva, decided in 1979, the defendant was charged with three unlawful sex acts on a 14 year old girl. The prosecution presented evidence of numerous acts of sexual intercourse occurring over a period of some six months. The jury was not informed by the prosecution or the trial court of the specific acts upon which the prosecution intended to rely to prove each of the alleged offenses, and defense counsel made no demand for such an election. Further, the jury was not instructed that it must unanimously agree upon the same act in order to convict. (People v. Alva, supra, 90 Cal.App.3d at p. 423, 153 Cal.Rptr. 644.)

The Alva court reversed, applying the "Castro-Williams principles" because there was proof of similar uncharged acts without an election or appropriate instructions. (Id., at pp. 425-426, 153 Cal.Rptr. 644; see also People v. Epps, supra, 122 Cal.App.3d at p. 704, 176 Cal.Rptr. 332.)

This line of cases reflect the development by the courts of the "either/or" rationale spelled out in Moreno and Alva. In People v. Madden (1981) 116 Cal.App.3d 212, 216, fn. 4, 171 Cal.Rptr. 897, where evidence of more sex acts was introduced than were charged, the court noted that "[t]he Castro rule is inapplicable where ... only the offense charged is proved [citations] or where CALJIC No. 17.01 or a similar instruction in fact is given ...." ²

The Supreme Court spoke to this point as recently as 1982 in People v. Diedrich (1982) 31 Cal.3d 263, 281, 182 Cal.Rptr. 354, 643 P.2d 971 and citing to Castro stated flatly: "There simply is no escape from the fact that two separate violations of section 165 were proved under the umbrella of count I and that at no point was the prosecution required to elect between the two violations; nor was the jury instructed that it had to find unanimously that Diedrich had committed at least one of them."

Then along came Gitchuway decided in 1983, and raises the question whether Castro and Williams as interpreted by Gitchuway mandate an election in every such fact situation. We conclude to the...