People v. Jerome

• Decision Date: 16 October 1984
• Docket Number: Cr. 13081
• Citation: 207 Cal.Rptr. 199,160 Cal.App.3d 1087
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Michael JEROME, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 199

207 Cal.Rptr. 199

160 Cal.App.3d 1087

The PEOPLE, Plaintiff and Respondent, v. James Michael JEROME, Defendant and Appellant.

Cr. 13081.

Court of Appeal, Third District, California.

Oct. 16, 1984.

John R. Olson and Susan Sutherland, Placerville, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In this appeal we consider the doctrine of legal impossibility in a case where the defendant was convicted of the crime of "oral copulation with another person who is under 14 years of age" but the victim was 15 years old. (Pen.Code, § 288a, subd. (c).) ¹

Defendant entered a negotiated plea of guilty before the magistrate to charges of forcible rape ( § 261, subd. (2)), and oral copulation of a minor under 14 ( § 288a, subd. (c)). He also admitted the allegation that he previously had been convicted of forcible rape ( § 667.6, subd. (a)). He was certified to the superior court for sentencing and that court imposed a term of 21 years in state prison. Defendant appeals, contending that the court erroneously imposed judgment on his plea of guilty to the oral copulation count because the victim was 15 years old. He also contends that there were several sentencing errors. We affirm the enhanced rape conviction but agree with defendant's claim that the conviction on the oral copulation count cannot stand; accordingly, as to that count, we shall modify the judgment and remand for resentencing.

On January 16, 1983, defendant, who was then 25 years old, approached the victim, Veronica Louise V., as she was making a telephone call at a phone booth at approximately 4 a.m. Pretending to be a private investigator hired by her parents to find her, defendant handcuffed the victim and forced her into his car; he then drove her to an isolated area in Sacramento County where he raped and orally copulated her.

The sentencing court imposed the upper term of eight years on the rape count. It then also imposed the upper term of eight years on the oral copulation count and ordered that sentence to be served as a full, separate and consecutive term, presumably under subdivision (c) of section 667.6. Finally, the court added a five year consecutive enhancement under section 667.6, subdivision (a), for the prior rape conviction.

I

In essence, defendant contends that his plea of guilty to oral copulation with a person under 14 years of age was fatally defective because the complaint expressly alleged the victim was 15 years old. He therefore argues that he cannot, consistent with due process, be sentenced on his plea to that deficient charge. The complaint inconsistently alleged that defendant committed an act of oral copulation "with Veronica Louise V[.], a person under the age of fourteen years and more than ten years younger than the said defendant, to wit, Fifteen years." The Attorney General apparently concedes that the victim was in fact fifteen years old at the time of the commission of the offenses. She was so described to the magistrate at the time of the plea, in the prosecutor's statement of aggravation and in the probation report. The Attorney General does not assert otherwise in this appeal. This, then, is not a case of a clerical error in the allegation of the victim's age. It is, instead, a case of legal impossibility; because the victim was over fourteen years of age, no assailant could commit the crime charged. Just as it is impossible for a person to commit the crime of conspiracy by conspiring with himself (see People v. Superior Court (Jackson) (1975) 44 Cal.App.3d 494, 498, 118 Cal.Rptr. 702), so too is it legally impossible to commit the crime of oral copulation of a minor under 14 years of age when the victim is 15. Irrespective of the actor's intent or purpose, conspiracy takes at least two parties and this form of criminal oral copulation takes a person under 14. In short, the charged crime can only be perpetrated upon someone 13 years old or younger.

The term "legal impossibility", as applied to a choate crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his conduct. "In a literal sense, there is no such thing as 'legal impossibility' because any behavior and any conduct can be made criminal. What is meant is the distinction between conduct which has been forbidden in penal law and conduct which is legal. 'Legal impossibility' is therefore only an awkward expression of the principle of legality." (Hall, General Principles of Criminal Law (2d ed. 1960) p. 586.) ² It follows that if the statute only prohibits certain conduct, it is legally impossible to violate it by engaging in different conduct.

Since it was legally impossible to commit the charged crime against the overaged victim, the trial court acted in excess of its jurisdiction when it imposed sentence for that crime. (People v. Mutch (1971) 4 Cal.3d 389, 395-396, 93 Cal.Rptr. 721, 482 P.2d 633; see also People v. McGee (1934) 1 Cal.2d 611, 36 P.2d 378 (court lacks jurisdiction when accusatory pleading shows statute of limitations has run); see generally Witkin, Cal. Criminal Procedure, Jurisdiction to Act (Excess of Jurisdiction), § 28, p. 32.) But notwithstanding that error, defendant cannot raise this jurisdictional issue on appeal because he did not request or procure a certificate of probable cause. (Pen.Code, § 1237.5; People v. Shults (1984) 151 Cal.App.3d 714, 719, 199 Cal.Rptr. 33; People v. Padfield (1982) 136 Cal.App.3d 218, 223-224, 185 Cal.Rptr. 903.) ³ "After [a guilty] plea the only issues which may be considered on appeal are those based upon constitutional, jurisdictional, or other grounds going to the legality of the proceedings and those only when the statutory requisites of Penal Code section 1237.5 are fulfilled." (People v. Padfield, supra, 136 Cal.App.3d at p. 224, 185 Cal.Rptr. 903.) However, in rare cases, because of the jurisdictional challenge involved and the inherent and incurable defect in the prosecution, an appellate court may appropriately treat a barred appeal as a petition for writ of habeas corpus. (See People v. Vest (1974) 43 Cal.App.3d 728, 731-732, 118 Cal.Rptr. 84 (appeal treated as habeas corpus); People v. McMillan (1971) 15 Cal.App.3d 576, 578, 93 Cal.Rptr. 296 (same).) "Where, as here, the record shows without doubt that a defendant has pleaded guilty to a crime which he did not commit, the courts should hesitate to apply technical rules to prevent such defendant from obtaining relief." (In re Scruggs (1971) 15 Cal.App.3d 290, 294, 93 Cal.Rptr. 119.) Guided by that admonition, we deem this to be a proper case to treat the non-appealable portion of the appeal as a petition for writ of habeas corpus. ^{4 4} We therefore now turn to the merits of the contention.

Habeas corpus relief has repeatedly been granted on grounds of inadequacy of counsel when petitioners, "on the advice of counsel, entered pleas of guilty to crimes which could not have been committed by them due to legal impossibility. (Citations.)" (In re Madrid (1971) 19 Cal.App.3d 996, 1001, 97 Cal.Rptr. 354.) ⁵ In short, "a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. [Citations.]" (In re Zerbe (1964) 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182; accord, In re Crumpton (1973) 9 Cal.3d 463, 467, 106 Cal.Rptr. 770, 507 P.2d 74.)

The Attorney General seeks to avoid this legal impossibility by arguing that section 288a, subdivision (c) is not limited to victims under 14. That subdivision, as we have noted in the margin, also proscribes oral copulation of a victim of any age when it is "accomplished against the victim's will by means of force, violence, duress, [or] menace ...." Because the use of force was included in the factual basis recited by the prosecutor at the time defendant entered his plea, the Attorney General contends that defendant admitted committing the crime of oral copulation by force. The flaw in that argument is that the omission of an allegation of force in the complaint deprived defendant of any notice that he was charged with, much less that he was pleading guilty to, the offense of forcible oral copulation. It is true that a plea of guilty "is deemed to constitute a judicial admission of every element of the offense charged." (People v. Chadd (1981) 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837.) But that admission acknowledges only the commission of the offense as charged, not as it might have been charged. California courts have long held that a plea of guilty to an accusatory pleading admits only such allegations as are actually charged. (See e.g., In re Tartar (1959) 52 Cal.2d 250, 256-257, 339 P.2d 553; People v. James (1978) 88 Cal.App.3d 150, 161, 151 Cal.Rptr. 354.) Where a crime can be committed in a variety of ways and only one of those ways has been pled, a plea of guilty does not admit that the offense was committed in all of the possible statutory ways. Section 954 permits the prosecutor to charge in one accusatory pleading "different statements of the same offense ..., under separate counts, ... [and] the defendant may be convicted of any number of the offenses charged ...." But when the prosecutor fails to charge different statements of the same offense, the defendant can be convicted by his plea only of the crime as it is actually pled. The complaint here only charged oral copulation of a minor under 14 and did not alternatively allege that the offense was also committed by force. Thus the only crime defendant could be convicted of by his plea of guilty was that of nonforcible oral copulation of a minor under 14 or any offense which is necessarily included within that crime. Since it was legally impossible to...