People v. Gann

• Decision Date: 29 February 1968
• Docket Number: Cr. 3009
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Russell GANN, Defendant and Appellant.

Page 508

66 Cal.Rptr. 508

259 Cal.App.2d 706

PEOPLE of the State of California, Plaintiff and Respondent, v. James Russell GANN, Defendant and Appellant.

Cr. 3009.

Court of Appeal, Fourth District, Division 2, California.

Feb. 29, 1968.

Rehearing Denied March 19, 1968.

[259 Cal.App.2d 708] Evans, Taves & Tuckerman and Richard J. Tuckerman, Ontario, under appointment of the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Stanton Price, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

GABBERT, Associate Justice pro tem. ^*

An information was filed charging the defendant with two counts of sex perversion in violation of section 288a, Penal Code, and a third count of the infamous crime against nature in violation of section 286, Penal Code. A codefendant, Robert Park Hall, was charged with one count of lewd and lascivious conduct with a child in violation of section 288, Penal Code.

A public defender represented both of the defendants and on the second day of a nonjury trial, the defendant Hall moved that the public defender be relieved as his counsel and that he be allowed to proceed in propria persona. The motion was granted. The court found Hall guilty of contributing to the delinquency of a minor, a misdemeanor, a necessarily included offense within the crime charged. Hall received probation and did not appeal.

The court found the appellant guilty as charged in Count I (sex perversion, Pen. Code, § 288a), guilty of Count III (infamous crime against nature, Pen.Code, § 286), and not guilty of Count II (sex perversion, Pen.Code, § 288a).

Proceedings were suspended and the defendant was examined to determine whether he was a mentally disordered sex offender. (Welf. & Inst.Code, § 5500.) A motion for new trial was denied. The court found the defendant was not a mentally disordered sex offender. The case was referred for diagnosis and treatment (Pen.Code, § 1203.03) but on motion of appellant the referral for diagnosis and treatment was vacated. Probation was denied and appellant was sentenced to state prison for the term prescribed by law, the sentences to run concurrently.

Roberta Jean T---, ^* age 11, Lawrence T---, ^* age 10, Darren T---, ^* age 7, and Darrell M---, ^* age 11, with permission of their respective mothers, were to spend the night of May 7, 1966, with appellant and codefendant Hall, both adult males, at appellant's home. During the night various acts of a revolting sexual nature were alleged to have taken place involving appellant with Lawrence and Darrell, and the codefendant Hall with Roberta.

A review of the evidence need not be detailed here inasmuch as the appellant does not challenge its sufficiency to support the judgment. The transcript of testimony has been fully examined and credible proof of guilt exists.

Appellant contends: (1) That Count III of the information (infamous crime against nature, Pen.Code, § 286), was defective and thus deprived the court of jurisdiction to try appellant; (2) that the introduction of certain photographs into evidence constituted reversible error; (3) that the appellant was effectively deprived of counsel by the ruling of the trial court permitting the codefendant to proceed in propria persona without severing the trial of the two defendants; (4) that the provisions of section 286, Penal Code, are so vague as to deprive the defendant of due process of law; and (5) that defendant is entitled to a new trial because more than twenty-one days elapsed between the date of conviction and the date of sentencing.

Appellant's first contention is that Count III of the information was so defective as to deprive the court of jurisdiction.

No demurrer was filed in the trial court. The defects of lack of jurisdiction an failure to state a public offense may be raised on appeal without a demurrer. (Pen.Code, § 1012; People v. Blankenship, 103 Cal.App.2d 60, 62, 228 P.2d 835; People v. McKean, 76 Cal.App. 114, 116, 243 P. 898; People v. Bliss, 47 Cal.App. 503, 504, 190 P.2d 1046.)

Count III alleges: 'That the said James Russell Gann on or about May 7, 1966, in the County of San Bernardino, State of California, did unlawfully commit the infamous crime against nature upon the person of Darrell M---, ^** a human being.'

The effect of appellant's argument is that since the specific act or acts allegedly committed are not set forth, and the information does not state whether 'Darrell M---' ^** is a male or female person, that a public offense is not shown and the trial court lacked jurisdiction to try appellant. There is no merit in this contention.

The language of the information is taken directly from section 286, Penal Code. 'The infamous crime against nature' refers to sodomy, which latter term is used to refer to two types of perversion: Buggery, or anal copulation with a human being, and Bestiality, or copulation of any kind with an animal. (Witkin, Calif.Crimes, vol. 1, § 541, p. 494.) 'On account of the degrading nature of the crime of sodomy it is uniformly held that it is not necessary to describe the offense with the same particularity which is required in other crimes. In 8 Ruling Case Law, page 335, section 366, it is said in that regard:

"* * * by reason of the vile and degrading nature of this crime, it has always been an exception to the strict rules requiring great particularity and nice certainty in criminal pleading, both at common law and where crimes are wholly statutory. It has never been the usual practice to describe the particular manner or the details of the commission of the act, and, where the offense is statutory, a statement of it in the language of the statute, or so plainly that its nature may be easily understood, is all that is required." (People v. Battilana, 52 Cal.App.2d 685, 693, 126 P.2d 923, 928.)

The appellant relies upon the cases of People v. Allison, 25 Cal.App. 746, 145 P. 539, and People v. Carroll, 1 Cal.App. 2, 81 P. 680. In the Carroll case the information, instead of charging the defendant with the 'infamous crime against nature,' erroneously charged him with the 'crime against nature' by 'having carnal knowledge of the body of * * * Frank Derby.' The court held that the charging language, not being that of the statute, was insufficient to establish the public offense. The words 'carnal knowledge of the body of * * * Frank Derby' gave no indication that Frank Derby was a man, and could simply mean intercourse with a female person, which act is not a crime. The whole information, taken together, was held not to charge a public offense.

In the Allison case the statutory language charging the 'infamous crime against nature' was used, with the addition that it was committed 'with and upon one Frank B. Love, by then and there having carnal knowledge of the body of the said Frank B. Love.' The court, on appeal, followed the Carroll case, which it stated 'is almost identical with the case at bar.' It was stated that the name of the alleged victim could have referred to a female person and that, by reasoning similar to Carroll, the indictment was insufficient in that it failed to charge defendant with the commission of a public offense.

The Carroll and Allison cases are distinguishable from the case before us. Both of those cases were decided before the amendment to section 952 of the Penal Code, which was adopted in 1927. That code amendment greatly simplified and liberalized criminal pleadings. Since that amendment the information or indictment may be couched in 'any words sufficient to give the accused notice of the offense of which he is accused.' (People v. Pierce, 14 Cal.2d 639, 644, 96 P.2d 784; People v. Price, 46 Cal.App.2d 59, 61, 115 P.2d 225; see Fricke and Alarcon, Crim.Procedure, (7th ed.) Pleading, ch. XI, p. 115, et seq.)

The decisions in the Carroll and Allison cases were impliedly overruled in the case of Battilana, supra, 52 Cal.App.2d 685, 126 P.2d 923. In the latter case the intervening amendment of section 952 of the Penal Code is mentioned. Both Carroll and Allison and the later case of People v. Hopwood (1933) 130 Cal.App. 168, 19 P.2d 824, are distinguished by the statement: 'It is true that the Hopwood case, supra, was decided since the amendment to section 952. But that liberalized section is not mentioned in the opinion. We assume the court failed to take into consideration the liberal construction of criminal pleadings which now prevails. That decision was not approved by the Supreme Court. We therefore conclude those authorities are not controlling of the present case.' (People v. Battilana, supra, 52 Cal.App.2d p. 695, 126 P.2d 923, 928.)

Appellant makes an additional contention of vagueness in the wording of section 286 of the Penal Code which deprived the appellant of due process of law. Much of the discussion of the claimed defectiveness of the wording of Count III of the information mentioned above is equally applicable here.

It is argued that a statute which is so vague in its terms that men of common intelligence must necessarily guess at its meaning violates due process of law. (Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.) Further, a statute must be definite enough to provide a standard of conduct for those whose activities are proscribed, as well as a standard for the ascertainment of guilt by the courts called upon to apply it. (Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; People v. Building Maintenance, etc., Assn., 41 Cal.2d 719, 264 P.2d 31.)

California courts, over many years, have dealt directly with the words of the statute. As far back as 1881, People v. Williams, 59 Cal. 397, 398, considered a case alleging an assault with intent to commit 'in and upon the person of the said Henry George the infamous crime against nature, contrary to the form,...