People v. Lang

• Decision Date: 08 April 1974
• Docket Number: Cr. 16988
• Court: California Supreme Court
• Parties: , 520 P.2d 393 The PEOPLE, Plaintiff and Respondent, v. Robert Kent LANG, Defendant and Appellant.

Page 9

113 Cal.Rptr. 9

11 Cal.3d 134, 520 P.2d 393

The PEOPLE, Plaintiff and Respondent, v. Robert Kent LANG, Defendant and Appellant.

Cr. 16988.

Supreme Court of California In Bank.

April 8, 1974.

Gary T. Wienerman, Los Angeles, under appointment by the Supreme Court, and David S. Folsom, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Harley D. Mayfield, Richard D. Gaske and Marc M. Seltzer, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Defendant Robert Lang appeals from a judgment of the Superior Court of San Diego County committing him to the State Department of Mental Hygiene for placement at Atascadero State Hospital as a mentally disordered sex offender. The trial court had found defendant guilty of two counts of committing lewd and lascivious acts upon a child under fourteen years of age (Pen.Code, § 288), following a trial by the court. We have concluded that defendant was deprived of his right to the effective assistance of counsel on appeal, by reason of his former appellate counsel's failure to raise certain contentions of arguable merit during the pendency of the appeal before the Court of Appeal. Accordingly, pursuant to our practice in prior cases, we order that this cause be returned to the Court of Appeal with instructions to reinstate the appeal and to appoint counsel for appellant for purposes of rebriefing and rearguing the appeal.

Defendant's commitment followed a court trial during which the following evidence was introduced: On March 12, 1971, several of defendant's friends and relatives held a surprise birthday party at defendant's house and in his honor. The party involved approximately fourteen adults and seven children, including defendant's wife, two daughters, step-daughter and son-in-law. Defendant and several other adults consumed varying quantities of alcoholic beverages; some witnesses testified that defendant and others were intoxicated during the party.

Defendant arrived at the party at about 7 p.m. He remained seated in his reclining chair in the living room during the events in question, in full view of various party-goers at all times. Acording to Leslie R., a nine-year-old prosecuting witness, at one point during the party she walked from the bedroom, where she was playing with the other children, to go to the kitchen to get a soft drink. On her return, defendant reached out from his chair, 'blocked' her way, picked her up and placed her on his lap. Then, according to Leslie, defendant 'put his hand in my vagina,' and rubbed inside and out. The act in question assertedly lasted for five minutes and took place with about twelve adults in the room. Leslie stated that she tried to 'get away' from defendant while the alleged act occurred.

Leslie's twin sister, Debbie, gave a nearly identical account that She had been molested by defendant at the same party. She was returning from the kitchen to the bedroom with a soft drink and defendant 'blocked' her way and, according to Debbie, 'put his hand in my vagina,' and felt inside. She testified that she was on defendant's lap for about three minutes and that there were six or seven persons in the room at the time. She also tried to 'get away' from defendant.

After the alleged molestations took place, the twins each returned to the bedroom where they continued to play with the other children until the party broke up. The twins did not report the incident to anyone until, several weeks later, their mother overheard them conversing and, after hearing their story, called the police.

Seven adult witnesses, including persons who claimed to have been in the same room with defendant during the entire party, testified that they had not seen either Leslie or Debbie on defendant's lap. One witness, Mrs. Raab (a nondrinker), testified that the only child to enter the living room area was her own daughter, Dorothy, who sat on defendant's lap for a few, evidently uneventful, minutes. None of the witnesses corroborated the twins' testimony. Defendant took the stand, and denied that he had molested the twins, that they had sat on his lap, or even that he knew they were at the party that night.

The trial judge, prior to announcing his findings, reviewed the foregoing evidence and noted that the twins had testified in 'clear and precise terms' regarding their molestation by defendant. The judge believed that the twins' testimony was not 'really shaken' by other witnesses, although the judge confessed that he did not know how 'bright' the girls were or what their 'capacity for fantasy' was. The judge likewise admitted that the alleged crime occurred in 'incredible' circumstances, at a party amid dozens of people 'milling around.'

Nevertheless, the judge observed that much drinking had occurred and that several witnesses had failed to observe Dorothy Raab on defendant's lap, even though defendant and Mrs. Raab remembered that incident. Moreover, the judge was 'not impressed' with defendant as a witness. The judge concluded that 'In viewing all the evidence, I can't find--I can't find that reasonable doubt that is necessary to find the defendant not guilty, and I must therefore find him guilty of this charge.'

Subsequently, after conviction, the trial court adjourned the proceedings and referred defendant to the psychiatric department of the superior court to determine whether he was a mentally disordered sex offender (see Welf. & Inst. Code, § 6302, subd. (c)). Following a hearing, the court found defendant to be a MDSO and ordered him committed to Atascadero.

On appeal to the Court of Appeal, defendant's former appellate counsel waived oral argument and submitted the case on the briefs. He prepared a three and one-half page opening brief which was directed solely to the propriety of defendant's commitment as a MDSO, and was devoid of argument for reversal of defendant's conviction. In the statement of facts, counsel noted that, 'as might be expected' there were substantial conflicts in the testimony regarding what took place at the party. Then counsel stated that 'Appellant vigorously contends that he was innocent and that the testimony of the two victims was so incredible that the finding of guilt must be reversed as impossible . . . (citation). ( ) While I am not in agreement with this contention, I must confess that there have been times when the Appellate Courts have held that I am not infallible, and for this reason, as well as for the reason that it is my belief that Appellant should be entitled to have his contentions heard, I am attaching an Appendix to this brief containing Appellant's own arguments in his own words.' (Italics added.)

Attached to the opening brief were ungrammatical, unpolished notes written by defendant and addressed primarily to the question of the substantiality of the evidence against him. Despite the fact that the people filed a brief which considered the issue at some length, counsel's reply brief failed to discuss the point. The Court of Appeal disposed of Defendant's argument on this issue in a single paragraph. ¹

We have recently set forth in detail the obligations of appellate counsel, including the duty to prepare a legal brief containing citations to the transcript and appropriate authority, and setting forth all arguable issues, and the further duty not to argue the case against his client. (In re Smith, 3 Cal.3d 192, 197, 90 Cal.Rptr. 1, 474 P.2d 969; People v. Feggans, 67 Cal.2d 444, 447--448, 62 Cal.Rptr. 419, 432 P.2d 21.) In the instant case, appellate counsel breached both duties. He not only failed to argue the insubstantiality of the evidence but affirmatively stated his belief that the point lacked merit. Such a concession could have had a devastating effect upon defendant's chances of a successful appeal, especially when coupled with counsel's waiver of oral argument.

In the Smith and Feggans cases, Supra, as well as in People v. Rhoden, 6 Cal.3d 519, 523--529, 99 Cal.Rptr. 751, 492 P.2d 1143, we catalogued the various contentions which appellate counsel failed to raise, 'not to imply how the merits of the appeal should have been resolved but to emphasize the gross deficiencies in counsel's preparation.' (Rhoden, at p. 529, 99 Cal.Rptr. at p. 757, 492 P.2d at p. 1149.) We noted that 'Petitioner need not establish that he was entitled to reversal in order to show prejudice in the denial of counsel.' (Id., at p. 524, 99 Cal.Rptr. at p. 754, 492 P.2d at p. 1146.)

As in those cases, the instant appeal presented issues of arguable merit which, though not necessarily decisive, certainly merited careful presentation by appellate counsel. First of all, counsel should have paid more attention to his client's urging that the evidence of his guilt was insubstantial. Although the issue has not yet been properly briefed, it seems apparent that a strong argument could have been made that the twins' testimony was inherently improbable and insubstantial. Each child, using almost identical words, told of unsuccessfully resisting separate but identical assults by defendant in the presence of from six to twelve persons, none of whom saw either assault. As noed above, even the trial court described the alleged event as 'incredible.' The prosecution offered no corroborating testimony whatever; neither twin witnessed or even mentioned the other's molestation, and no medical testimony was introduced to establish the possibility of such an assault.

A properly briefed argument, emphasizing the foregoing circumstances with references to the transcript testimony, might well have led the Court of Appeal to conclude that the alleged assaults were physically impossible, and that the twins' testimony was demonstrably false. (See People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758; People v. Headlee, 18 Cal.2d 266, 267--268, 115 P.2d...