People v. Gottman

• Decision Date: 10 December 1976
• Docket Number: Cr. 15137
• Citation: 134 Cal.Rptr. 834,64 Cal.App.3d 775
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ray Coates GOTTMAN, Defendant and Appellant.

Page 834

134 Cal.Rptr. 834

64 Cal.App.3d 775

PEOPLE of the State of California, Plaintiff and Respondent, v. Ray Coates GOTTMAN, Defendant and Appellant.

Cr. 15137.

Court of Appeal, First District, Division 1, California.

Dec. 10, 1976.

Hearing Denied Feb. 3, 1977.

John M. Hanley (court-appointed), Sunnyvale, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

ELKINGTON, Associate Justice.

We granted a rehearing following our initial opinion on this appeal, in order to give further consideration to the Attorney General's insistence that the opinion constituted 'a triumph of illogic over justice.' The issue raised in the petition concerns the role of a jury in the administration of criminal justice.

Defendant Gottman was charged with (1) 'rape by threat of great bodily harm,' a violation of Penal Code section 261, subdivision 3, and (2) a violation of Penal Code section 288a which proscribed the act of copulating the sexual organ of one person with the mouth of another. As to the Penal Code section 288a charge it was further alleged that Gottman 'did compel the participation of said other person in said act of oral copulation by force, violence, duress, menace and threat of great bodily harm.'

Gottman had admitted two prior convictions of felony, i.e., assault with intent to commit rape, and burglary, second degree.

At the time of the commission (July 29, 1975) of the offenses charged against Gottman, a consensual violation by adults of Penal Code section 288a was punishable 'by imprisonment in the state prison for not exceeding 15 years, or by imprisonment in the county jail not to exceed one year; . . .' But such an act when nonconsensual, i.e., by 'force, violence, duress, menace, or threat of great bodily harm,' was punishable by 'imprisonment in the state prison for not less than three years.' It will be seen that the consensual act constituted a lesser degree of the crime denounced by the statute.

A jury found Gottman 'guilty of a felony, to-wit a violation of California Penal Code Section 261.3 (Rape by threat of great bodily harm).' (Emphasis ours.) But while finding him guilty of the Penal Code section 288a charge they found that the subject act was consensual, in that Gottman 'did not use force, violence, duress, menace and threat of great bodily harm.' (The emphasis again is ours.) From the evidence before the jury the only reasonable conclusion to be drawn was that if Gottman had in fact committed the two offenses, then each had been committed By threat of great bodily harm, and neither was consensual.

Gottman was thereafter sentenced to imprisonment in the state prison, the 'Sentences to run concurrently; execution on (the Pen.Code, § 288a, sentence) stayed during period of appeal then become final.' His appeal is from the judgment of conviction of both offenses.

Pending Gottman's appeal the state's Supreme Court has held that the 1975 amendment to Penal Code section 288a, decriminalizing consensual acts of oral copulation between adult persons, 'requires the dismissal of a pending criminal proceeding charging such conduct.' The ruling is applicable to such proceedings as were pending on appeal at the time of the decision. The high court's holding will be found in People v. Rossi, 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313.

In our now vacated opinion we respected the jury's verdict, finding that the Penal Code section 288a act of which Gottman was found guilty was consensual. And obedient to the rule as stated by People v. Rossi, supra, we ordered the judgment modified by striking therefrom reference to the Penal Code section 288a conviction.

I. On his petition for rehearing the Attorney General argues: 'It is obvious to everyone outside this Court that the act of oral copulation, performed at knife point, was not consensual. It will appall and surprise the victim that she consented to the appellant's depravities. It will also shock the jurors to learn that they 'found' that the victim consented to the violation of section 288a, especially since they determined that the same victim during the same course of events did not consent to the act of sexual intercourse. This Court's conclusion of consent is conclusively refuted by the uncontradicted evidence in the record. . . . In sum, this Court's opinion is legally, logically, and morally unacceptable. . . . We request a rehearing to prevent a miscarriage of justice.'

Regrettably, it becomes necessary to reiterate a basic and long-recognized principle of criminal law and procedure throughout the United States.

In a criminal case a jury's acquittal, or finding of a lesser degree of guilt than that charged, although contrary to uncontradicted evidence, is final and absolute, and irreversible by trial and appellate courts. It may be, as insisted by the Attorney General, that the rule is illogical, or at least sometimes operates that way. But our history and tradition have made it clear at least to most that such a rule, on balance, is preferable to one which permits a judge, or some other power, to compel a jury's guilty verdict, or to set aside a jury's verdict of acquittal.

It was long ago held in People v. Lem You, 97 Cal. 224, 228, 32 P. 11, 12, that a jury 'necessarily has the naked Power to decide all the questions arising on the general issue of not guilty; but it only has the Right to find the facts, and apply to them the law as given by the court.' (Latter emphasis ours; see also People v. Powell, 34 Cal.2d 196, 205--206, fn. 2, 208 P.2d 974; People v. Brown, 35 Cal.App.3d 317, 327, 110 Cal.Rptr. 854; People v. Smith, 195 Cal.App.2d 735, 738--739, 16 Cal.Rptr. 12; People v. Doyle, 175 Cal.App.2d 309, 312, 345 P.2d 971.) This power to decide contrary to the evidence is sometimes described as a 'naked power,' without right. (People v. Macken, 32 Cal.App.2d 31, 41, 89 P.2d 173.) Where the jury have so abused their power courts may not intervene, and the jury having "paltered with their oaths and with the law they must make their own peace with conscience." (People v. Stovall, 94 Cal.App. 635, 637, 271 P. 576, 577.)

The United States Supreme Court has succinctly said: 'The judge cannot (in a criminal case) direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. . . . (T)he jury were allowed the technical right, if it can be called so, to decide against the law and the facts . . ..' (Horning v. District of Columbia, 254 U.S. 135, 138--139, 41 S.Ct. 53, 54, 65 L.Ed. 185.)

Lower federal courts are in precise agreement. 'There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. . . . The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law.' (United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1130, 1132.) 'We recognize . . . the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence.' (United States v. Moylan, 4 Cir., 417 F.2d 1002, 1006 (cert. den., 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91).) 'If they will, jurors may set at defiance law and reason and refuse to find the accused guilty; when they do, he escapes, however plain his guilt. But, though that is within their power, it is not within their right; they are as much bound by the law as a court.' (Seiden v. United States, 2 Cir., 16 F.2d 197, 198.) 'We interpret the acquittal as no more than (the jury's) assumption of a power which they had no right to exercise, but to which they were disposed through lenity.' (Steckler v. United States, 2 Cir., 7 F.2d 59, 60.)

A few such expressions from sister states follow. 'The obverse of the principle prohibiting directed verdicts in criminal trials is the recognized prerogative of a jury to disregard the evidence or the judge's instructions.' (Watts v. United States, D.C.App., 328 A.2d 770, 772.) '(W)hile the jury has the power to refuse to find any fact regardless of how clearly it may appear to a judge to have been proved, the jury does not, so to speak, have the right to find a fact and then refuse to render the verdict which such a finding necessarily requires.' (People v. Mussenden, 308 N.Y. 558, 127 N.Ed.2d 551, 554.) 'It is the duty of the trial courts to refuse to give instructions where the evidence and the law does not warrant the giving of them, it being the duty of the court to declare the law notwithstanding the jury has the power to disregard both the evidence and the instructions of the court.' (McMullin v. State, Ark., 60 S.W.2d 177, 178.) 'Undoubtedly it is within the power of a jury to disregard the evidence and acquit persons whom the evidence shows to be guilty of the crime charged in the indictment. It is also true that a jury might disregard the instructions of the court and find for a lower degree of homicide than that warranted by the evidence and the state have no remedy.' (Clark v. State, Ark., 276 S.W. 849, 855.)

It should be noted that the rule under discussion recognizes also a jury's power to find an accused guilty of an offense of a lesser degree than that manifested by the evidence and the trial court's instructions, as in the case before us. (See People v. Powell, supra, 34 Cal.2d 196, 205, 208 P.2d 974; People v. Brown, supra, 35 Cal.App.3d 317, 326--327, 110 Cal.Rptr. 854; People v. Smith, supra, 195 Cal.App.2d 735, 738, 16 Cal.Rptr. 12.)

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