People v. Gammage

• Decision Date: 07 May 1992
• Docket Number: No. S018892,S018892
• Court: California Supreme Court
• Parties: , 828 P.2d 682 The PEOPLE, Plaintiff and Respondent, v. Johnnie Vincent GAMMAGE, et al., Defendants and Appellants.

Page 541

7 Cal.Rptr.2d 541

2 Cal.4th 693, 828 P.2d 682

The PEOPLE, Plaintiff and Respondent, v. Johnnie Vincent GAMMAGE, et al., Defendants and Appellants.

No. S018892.

Supreme Court of California,

In Bank.

May 7, 1992.

Thomas T. Ono, Los Angeles, under appointment by the Supreme Court, and Norman W. de Carteret, Sherman Oaks, under appointment by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Donald E. de Nicola, Linda C. Johnson, Susan D. Martynec and Richard B. Cullather, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

Lord Matthew Hale, Chief Justice of the Court of King's Bench from 1671 to 1676, once observed: "It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." (1 Hale, The History of the Pleas of the Crown (1st Am. ed. 1847) p. 634.) ¹

These "musings were introduced somewhat obliquely into the law of California by People v. Benson [ (1856) ] 6 Cal. 221...." (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 875, 123 Cal.Rptr. 119, 538 P.2d 247 (Rincon-Pineda ).) As a result of People v. Benson (1856) 6 Cal. 221 and later decisions, prior to 1975, courts in sexual assault cases were required to instruct the jury sua sponte, " 'A charge such as that made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent. [p] Therefore, the law requires that you examine the testimony of the female person named in the information with caution.' " ( Rincon-Pineda, supra, 14 Cal.3d at p. 871, 123 Cal.Rptr. 119, 538 P.2d 247; see also id. at pp. 875-877, 123 Cal.Rptr. 119, 538 P.2d 247.)

In Rincon-Pineda, we recognized that this instruction had "outworn its usefulness" and "performs no just function," and disapproved its continued use. (14 Cal.3d at pp. 877, 883, 123 Cal.Rptr. 119, 538 P.2d 247.) In its place, we mandated that in every criminal case in which no corroborating evidence is required the jury be instructed as follows: " 'Testimony which you believe given by one witness is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which proof of such fact depends.' " (Id. at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247.)

We are now called upon to resolve a conflict in the Court of Appeal decisions over whether a jury in a sex offense case that is given this instruction should also be advised that the testimony of the complaining witness need not be corroborated.

I. FACTS

A jury convicted defendants Michael Dajuan Goldsmith and Johnnie Vincent Gammage The Court of Appeal opinion summarized the underlying facts:

[828 P.2d 684] of one count of forcible rape by acting in concert (Pen.Code, §§ 261, subd. (2), 264.1), and convicted Goldsmith of one count of oral copulation with a person under 18 years of age (Pen.Code, § 288a, subd. (b)(1)). The jury found defendants not guilty of other counts.

"[O]n July 20, 1987, 16-year-old Jamise W. arrived at Dorsey High summer school around 8 a.m. but instead of going to class rode with friends to appellant Gammage's apartment. During the following three or four hours, according to the victim, she was sexually assaulted by [Gammage and Goldsmith] and other young men. Around 12:15 p.m. the victim, naked from the waist up, fled the apartment and ran for help to a woman across the street. The police were promptly called, the victim taken to a hospital, and appellants soon arrested." (Fn. omitted.)

Goldsmith testified at trial that Jamise orally copulated him voluntarily. He denied raping her. Gammage did not testify.

The jury instructions at trial included the following two standard instructions:

(1) "Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends." (CALJIC No. 2.27 (4th ed. 1986 rev.), emphasis added; see Rincon-Pineda, supra, 14 Cal.3d at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247); ² and (following 25 intervening instructions),

(2) "It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence." (Former CALJIC No. 10.21 (4th ed. 1970 rev.) (now CALJIC No. 10.60 (5th ed.)).) ³

On appeal, Goldsmith contended that in combination, these two instructions improperly suggested that the jury should view his testimony with caution (CALJIC No. 2.27), but that the testimony of the complaining witness need not be viewed with caution. The Court of Appeal disagreed, and affirmed the convictions. We granted Goldsmith's petition for review, and now affirm the judgment of the Court of Appeal. ⁴

II. DISCUSSION

A. Prior Cases

In People v. McIntyre (1981) 115 Cal.App.3d 899, 906-907, 176 Cal.Rptr. 3, the defendant argued that Rincon-Pineda had impliedly disapproved CALJIC No. 10.60, and that giving that instruction as well as CALJIC No. 2.27 "unduly emphasized there was no corroboration needed." (Id. at p. 906, 176 Cal.Rptr. 3.) The Fourth Appellate District, Division One, disagreed: "[R]ape has some special features which make such an instruction on lack of corroboration most proper. The proof of the elements of this crime often turns on a credibility contest between the accused and the accuser alone, since the act is most often committed in private (see People v. Rincon-Pineda (1975) 14 Cal.3d 864, 881 [123 Cal.Rptr. 119, 538 P.2d 247] ). Permitting a jury to operate under the misconception corroboration is required would put the value of the victim's testimony on a level below that of the defendant's testimony The same division reiterated these views in People v. Jamison (1984) 150 Cal.App.3d 1167, 1172-1174, 198 Cal.Rptr. 407.

[828 P.2d 685] credibility aside, and that is not the law." (Id. 115 Cal.App.3d at p. 907, 176 Cal.Rptr. 3.)

The first decision to question the validity of CALJIC No. 10.60 was People v. Pringle (1986) 177 Cal.App.3d 785, 223 Cal.Rptr. 214, decided by a different panel of the same division that decided McIntyre, supra, 115 Cal.App.3d 899, 176 Cal.Rptr. 3, and Jamison, supra, 150 Cal.App.3d 1167, 198 Cal.Rptr. 407. In Pringle, the trial court gave CALJIC No. 10.60, but not CALJIC No. 2.27. The Court of Appeal found error in not giving CALJIC No. 2.27, and further found the error was "compounded" by also giving CALJIC No. 10.60. The court found that giving CALJIC No. 10.60 alone implies that the victim's testimony has been singled out because it should be treated differently than that of other witnesses, and suggests that other witnesses may require corroboration. (Pringle, supra, at p. 789, 223 Cal.Rptr. 214.)

The Pringle (supra, 177 Cal.App.3d 785, 223 Cal.Rptr. 214) court distinguished McIntyre, supra, 115 Cal.App.3d 899, 176 Cal.Rptr. 3, because CALJIC No. 2.27 was given in McIntyre. (177 Cal.App.3d at p. 790, 223 Cal.Rptr. 214.) The court, however, went on to suggest that "even where CALJIC No. 2.27 is given, when combined with CALJIC No. 10.21, the implication arises that the prosecuting witness testimony does not require corroboration but the testimony of other witnesses referred to in CALJIC No. 2.27 must be viewed with caution; in other words, the erroneous implication that witnesses other than the prosecuting witness need be viewed with caution." (Ibid.)

The author of Pringle, supra, 177 Cal.App.3d 785, 223 Cal.Rptr. 214, revisited this question in People v. Adams (1986) 186 Cal.App.3d 75, 230 Cal.Rptr. 588. In Adams, as in Pringle, the trial court gave CALJIC No. 10.60 but not CALJIC No. 2.27. The defendant argued that it was "error to give CALJIC No. 10.21 at all, with or without CALJIC No. 2.27, since it gives the impression the victim's testimony is entitled to a special deference, affects the credibility contest in favor of the victim, and dilutes the 'beyond a reasonable doubt' standard. Adams argues CALJIC No. 10.21 should be abolished along with [former] CALJIC No. 10.22 [the instruction disapproved in Rincon-Pineda, supra, 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247], since the two were considered complementary instructions (People v. Putnam (1942) 20 Cal.2d 885, 891-892, 129 P.2d 367, overruled in People v. Rincon-Pineda, supra, 14 Cal.3d at p. 882, 123 Cal.Rptr. 119, 538 P.2d 247), and since the new CALJIC No. 2.27 contains both the noncorroboration rule and the cautionary instruction." (Adams, supra, 186 Cal.App.3d at p. 79, 230 Cal.Rptr. 588.)

The Adams court expressly disagreed with its prior decisions in McIntyre, supra, 115 Cal.App.3d 899, 176 Cal.Rptr. 3, and Jamison, supra, 150 Cal.App.3d 1167, 198 Cal.Rptr. 407, and found that "the essence of CALJIC No. 10.21 is adequately stated in CALJIC No. 2.27 and there is no need for CALJIC No. 10.21 when No. 2.27 is given." (Adams, supra, 186 Cal.App.3d at p. 79, 230 Cal.Rptr. 588.) The court was "satisfied even when the case turns on a credibility contest between the victim and the defendant, CALJIC No. 2.27 informs the jury the victim's testimony, if believed, is enough to prove the crime." (Id. at p. 80, 230 Cal.Rptr. 588.) Therefore, the court concluded, "the better practice is to eliminate CALJIC No. 10.21 even when accompanied by CALJIC No. 2.27 to avoid the prejudicial...