People v. Gordon

• Decision Date: 18 March 1985
• Citation: 212 Cal.Rptr. 174,165 Cal.App.3d 839
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clyde Dean GORDON, Defendant and Appellant. Crim. 12829.
• Court: California Court of Appeals Court of Appeals

Page 174

212 Cal.Rptr. 174

165 Cal.App.3d 839

The PEOPLE, Plaintiff and Respondent, v. Clyde Dean GORDON, Defendant and Appellant.

Crim. 12829.

Court of Appeal, Third District, California.

March 18, 1985.

As Modified April 12, 1985.

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Christine Zilius, Deputy State Public Defender, for defendant and appellant.

John K. Van de Camp, Atty. Gen., Nancy Sweet and Thomas Y. Shigemoto, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In this appeal we consider a host of questions arising from the now familiar case in which the evidence establishes more crimes than were charged. Here defendant Clyde D. Gordon was convicted of one count of sodomy with a person under 16 years of age by a person over the age of 21 (Pen.Code, § 286, subd. (b)(2)), and three counts of lewd and lascivious conduct with a child under 14 years of age (Pen.Code, § 288, subd. (a)). Sentenced to state prison for concurrent terms of five years on each of the four felonies, he appeals. On appeal defendant contends: (1) the sodomy count was barred by the statute of limitations; (2) as to the sodomy count and one count of lewd and lascivious conduct, the prosecution did not elect which acts it was relying upon to convict and, further, as to the sodomy count, the trial court failed to instruct on its own motion that the jury must unanimously agree on the specific act forming the basis of the verdict; (3) as to the sodomy count and one count of lewd and lascivious conduct, instructing the jury with CALJIC No. 4.71 constituted prejudicial error; (4) the sodomy conviction barred a concomitant conviction for a lewd and lascivious act potentially based on the same act; (5) defendant was denied effective assistance of counsel based on his attorney's failure to force the prosecution to elect specific acts, to object to introduction of evidence of uncharged sex offenses, and to request limiting instructions; and (6) the trial court erred in failing to instruct, again on its own motion, on appropriate lesser included offenses. We shall reverse the sodomy conviction and affirm the remainder of the judgment.

STATEMENT OF THE CASE

By an amended information filed on February 17, 1983, defendant was charged with five felony counts: one count charged sodomy on a female child under the age of 16, alleged to have occurred from on or about January 1, 1979, through November 30, 1980 (Pen.Code, § 286, subd. (b)(2), count I); ¹ and the remaining four counts Following a jury trial, the jury returned verdicts finding defendant guilty of the sodomy charge (count I) and three counts of lewd and lascivious conduct (counts II through IV) and not guilty of one count of lewd and lascivious conduct (count V). Probation was denied and defendant was sentenced to state prison. Defendant filed a notice of appeal on the day he was sentenced.

charged lewd and lascivious conduct with a child under the age of 14, alleged to have occurred from on or about June 28, 1978, through November 30, 1980 (count II), on or about December 1 through December 22, 1978 (count III), on or about December 22, 1978 (count IV), and on or about July 1 through August 30, 1979 (count V), respectively. (Pen.Code, § 288, subd. (a).) ²

Subsequently, the sentence was recalled pursuant to section 1170, subdivision (d), and defendant was resentenced to a total of five years: the upper term of three years on count I and the upper term of five years on counts II, III and IV, all terms to be served concurrently. He was also given credit for time served and good time/work time. Defendant timely filed a second notice of appeal and the two appeals were consolidated by stipulation.

STATEMENT OF FACTS

A. Counts I (Sodomy) and II (Lewd and Lascivious Conduct)

Marla M., who was nine years old when she testified at trial, was living during the period in question in Little Valley, California with her mother Gloria Gordon, then Gloria Ruiz, and Robert Ruiz, her mother's husband. She was then five or six years old and in kindergarten and first grade. Defendant and his family moved to Little Valley in December 1977. Defendant, who was later to become Marla's step-grandfather, and his wife Willa lived just up the street from Marla and they were paid to babysit Marla on a regular basis. Both he and his wife babysat Marla after school and on weekends. Defendant's sexual misconduct with Marla began at the earliest time in the beginning of 1978. Marla testified to general, unspecified instances as well as more specific instances when defendant sexually touched her when she lived in Little Valley.

The general instances were these: (1) When Marla rode with defendant in his pickup truck, defendant would make Marla sit next to him and would rub her thighs with his hand. (2) From kindergarten to about third grade, defendant touched Marla "lots of times;" "there's so many times he did it, I can't remember them all." These touchings were done in "different ways sometimes." (3) Defendant also touched Marla's bottom with his penis ("long thing") twice. (4) Defendant touched Marla's vagina (where she "pass[es] water") with his penis many times, at least more than five times.

Marla also recounted these specific instances: (1) When Marla was in either kindergarten or first grade, in 1978 to 1979, and while defendant and his wife were babysitting her, defendant took Marla into the tack room at his residence, took off her underpants and touched her vagina, chest Marla's mother, Gloria, testified as a prosecution witness. Gloria married defendant's son, Richard Gordon, on August 4, 1979. All the events described by Marla occurred before this date. Marla first told her mother about defendant's conduct in November or December of 1980 when Gloria asked Marla if she would like to stay with defendant and Willa while she and Richard went to look for work. Marla stated she would not like that. When pressed for her reasons, she told Gloria what had been happening. Gloria confronted defendant later that evening. According to Gloria, defendant neither admitted nor denied the accusation, but instead turned to Marla and asked "Why did you tell your momma?" The next day, Gloria told her neighbors Barbara Hitchcock and Melissa Turner that defendant had sexually abused Marla. She did not go to the police because her husband Richard told her that if she put his father in jail she better file for divorce. She did not want to break up her marriage. Gloria consequently did not report the incidents to the police until March 1982. Later Gloria went to Oregon to avoid being subpoenaed because defendant's wife was pressuring her and because Marla did not want to testify. At one point, Gloria wrote a letter to defendant trying to get him to give her ownership of his truck or $500 and threatening him with prosecution.

and "bottom" with his hands. Defendant also put his penis ("his long thing with the two round things") inside of her vagina. Marla thought Willa knew about the incident because Willa was just out in the garden when Marla yelled in protest. (2) On two other occasions defendant touched his penis to Marla's anus. On one occasion, date and place not specified, defendant tried to put his penis in her anus and she hollered and cried because it hurt. Defendant kept trying for a few minutes and then stopped. On the second occasion, Marla was camping with defendant and a man named Stan. Marla and defendant slept inside defendant's camper; Stan slept outside. One night defendant tried to put his penis inside her anus; it again hurt and Marla [165 Cal.App.3d 847] cried and hollered. Defendant told Marla that if she told anyone he would hurt her mother. She was afraid defendant would carry out the threat.

According to Gloria, prior to her trip to Oregon with Marla and after charges were filed, defendant told Gloria he did not hurt any other little girls and was sorry for what had happened to Marla. He stated he would get psychiatric help.

B. Counts III and IV (Lewd and Lascivious Conduct)

Brandy W., who was eleven years old when she testified, was approximately seven years old when defendant and Willa babysat her and her brother. Approximately one week prior to December 22, 1978, the date of a friend's birthday party, Brandy was in defendant's backyard in Little Valley when defendant took her behind the barn during the daytime and stuck his hand down her pants and touched her vagina. Brandy was afraid and did not tell anyone what happened.

On another occasion, one night either two days before or after the other incident, Brandy accompanied defendant in his truck to get Willa a soda. Defendant turned off a private road (Skunk Hollow Road) in Little Valley, got out of the truck, opened the passenger door, told Brandy to lie down, pulled down her pants and touched or "stuck his penis in [her] vagina." Defendant told Brandy to tell Willa that they had just gone to a bar.

Brandy told her friend Candice about one or both incidents while she was at the party. Candice in turn told the mother of the child who was having the party. When Brandy was questioned by this woman, she remained silent. Brandy's mother, Barbara Hitchcock, was informed what happened the following day. Barbara initially did not call the police because it was "really hard to believe" and she thought "it would be better for her just to forget about it." However, she changed her mind sometime later when she saw defendant riding

in his truck with a six-year-old mentally retarded girl. ³

C. Defense

Stanley Stahl testified that in July 1979 he went prospecting for gold with defendant and Marla. As he and defendant were leaving for the trip, Marla cried and said she wanted to come along. Defendant let her come. On each of the three nights Marla slept in the camper and the two men slept outside. Stahl, who was a light sleeper, never heard defendant get up and go into the camper....