People v. Madden

• Decision Date: 24 February 1981
• Docket Number: Cr. 4097
• Citation: 171 Cal.Rptr. 897,116 Cal.App.3d 212
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Rick MADDEN et al., Defendants and Appellants.

Page 897

171 Cal.Rptr. 897

116 Cal.App.3d 212

The PEOPLE, Plaintiff and Respondent, v. James Rick MADDEN et al., Defendants and Appellants.

Cr. 4097.

Court of Appeal, Fifth District, California.

Feb. 24, 1981.

Hearing Denied April 29, 1981.

Alan M. Caplan, San Francisco, for plaintiff-appellant Madden

Quin Denvir, State Public Defender, Tom Lundy, Deputy State Public Defender, Sacramento, for defendant-appellant Vernacchio.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Nancy Sweet and Charles J. James, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HOPPER, Acting Presiding Justice.

Where evidence is introduced as to several criminal acts of oral copulation, all of which occurred within a relatively short time span but an accused is not charged with a violation of all of those acts, does the trial court commit reversible error in not giving a sua sponte instruction stating that the jurors must all agree that the accused committed the same act or acts? Yes. That issue (along with other contentions) arises out of an appeal by appellants Madden and Vernacchio (hereinafter respectively Madden and Vernacchio) from conviction after jury trial of certain unlawful sexual acts (Madden of two counts of forcible sodomy and two counts of forcible oral copulation, and Vernacchio of one count of forcible oral copulation).

The sordid factual details need not be set forth in full. As to Vernacchio there was evidence, if believed by the jury, of a minimum of two acts of forcible oral copulation in the Stanislaus County Jail. Only one act was charged. As to Madden there was evidence, if believed by the jury, of two acts of forcible sodomy (both charged) and a minimum of three acts of forcible oral copulation with only two of such acts being charged. At no time, as to either Madden or Vernacchio, did the prosecutor make an election with respect to which act or acts of oral copulation defendants were charged. Similarly the jury was not instructed in the language of CALJIC No. 17.01 ¹ or similar language that the jury had to agree upon the particular act or acts.

Vernacchio ² contends the trial court should have, sua sponte, instructed the jury that a finding of guilt requires the jury to all agree that the particular accused committed the same act or acts (see, e. g., CALJIC No. 4.71.5). ³

People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, notes that in criminal cases a trial court must instruct, even in the absence of a request, on those general principles of law which are closely and openly connected with the facts before the court and which are necessary for the jury's understanding of the case.

Just as juries must be instructed on lesser included offenses and defenses such as diminished capacity, the jury must be instructed on certain principles of law which control how they approach their task. For example, juries must be told the People have the burden of proving a defendant guilty and that the evidence must convince them of the defendant's guilt beyond a reasonable doubt. (Cf. In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Pen.Code, § 1096a.) Similarly, juries must be informed that their verdict must be unanimous. (See Cal.Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265, 148 Cal.Rptr. 890, 583 P.2d 748.) The instruction omitted in this case also deals with how a jury must approach its task.

The principle that the entire jury must agree on the act or acts a defendant is convicted of is not new or undeveloped. (Compare People v. Flannel (1979) 25 Cal.3d 668, 680-683, 160 Cal.Rptr. 84, 603 P.2d 1.) Decisional law in California has held for many years that such an instruction is required. The rule was first announced in People v. Castro (1901) 133 Cal. 11, 13, 65 P. 13 (several acts of rape over a course of several months) and has been applied in many cases thereafter (People v. Williams (1901) 133 Cal. 165, 168-169, 65 P. 323 (multiple acts of rape over a four-month period); People v. McNeill (1980) 112 Cal.App.3d 330, 335-336, 169 Cal.Rptr. 313 (assault on different victims); People v. Alva (1979) 90 Cal.App.3d 418, 424-426, 153 Cal.Rptr. 644 (multiple unlawful sex acts over five-month period); People v. Gavin (1971) 21 Cal.App.3d 408, 418-420, 98 Cal.Rptr. 518 (possession of narcotics); People v. Dutra (1946) 75 Cal.App.2d 311, 321-322, 171 P.2d 41 (contributing to the delinquency of a minor where there are several acts of sex perversion); People v. Martinez (1922) 57 Cal.App. 771, 774, 208 P. 170 (several acts of rape; no prejudice because no contradictory evidence as to the acts); People v. Ruiz (1920) 48 Cal.App. 693, 694-696, 192 P. 327 (several acts within an hour of assault with intent to commit rape); People v. Elgar (1918) 36 Cal.App. 114, 171 P. 697 (two acts of rape); People v. Hatch (1910) 13 Cal.App. 521, 534-536, 109 P. 1097 (several acts of embezzlement); People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 8-9, 108 Cal.Rptr. 338 (two acts of resisting arrest approximately one-half hour apart); People v. Thompson (1956) 144 Cal.App.2d Supp. 854, 859, 301 P.2d 313 (jury must agree the defendant unlawfully used narcotics or was addicted to narcotics); People v. McMillan (1941) 45 Cal.App.2d Supp. 821, 829-830, 114 P.2d 440 (multiple batteries); see also People v. Scofield (1928) 203 Cal. 703, 709-710, 265 P. 914 (hit and run statute with separate parts jury must all agree on which part was violated)). ⁴

Unfortunately, cases subsequent to Castro have resulted in a farrago. Some have treated the problem as simply a matter of election by the prosecutor and may or may not then proceed to discuss the jury instruction. If there is no election and an election was required, the law presumes that an election has been made to stand upon the first act on which substantial evidence is introduced. (People v. Castro, supra, 133 Cal. 11, 13, 65 P. 13; People v. Williams, supra, 133 Cal. 165, 169, 65 P. 323; see also People v. Muniz (1970) 4 Cal.App.3d 562, 568, fn. 3, 84 Cal.Rptr. 501; People v. Byrnes (1948) 84 Cal.App.2d 64, 70-71, 190 P.2d 286; People v. Meraviglia (1925) 73 Cal.App. 402, 408-409, 238 P. 794; People v. Martinez, supra, 57 Cal.App. 771, 774-775, 208 P. 170; People v. Harlan (1916) 29 Cal.App. 600, 602, 156 P. 980.) However, even where an election has been made or is deemed to have been made, the jury must be informed which act or acts are being prosecuted. (People v. Castro, supra, 133 Cal. 11, 13, 65 P. 13; People v. Williams, supra, 133 Cal. 165, 169, 65 P. 323; see also People v. Ruiz, supra, 48 Cal.App. 693, 695, 192 P. 327; People v. Crume (1976) 61 Cal.App.3d 803, 809, fn. 4, 132 Cal.Rptr. 577; People v. LaMantain (1949) 89 Cal.App.2d 699, 701, 201 P.2d 598.)

Some cases state there was only one offense (and thereby resolve the issue) based on a time factor. In some of the cases it is not clear what instruction, if any, was given to the jury. Cases tend to overlap in the discussion of the issues. Cases which conclude that multiple sex offenses, assaults or similar offenses are continuous in nature or are part of a continuous course of conduct are either situations where only the election issue is discussed (and not the instruction issue) or are simply wrong (perhaps resulting from the natural revulsion to some of the brutal attacks involved). (See, e. g., People v. Mota (1981) --- Cal.App.3d ---, 171 Cal.Rptr. 212 (multiple rape of a single victim within approximately one hour held to be one continuous act nothing is said in the opinion in regard to what instruction, if any, was given); People v. Jefferson (1954) 123 Cal.App.2d 219, 266 P.2d 564 (assault at two different times with two different knives said to be one offense, no indication as to what instruction, if any, was given); People v. Fontana (1934) 138 Cal.App. 379, 32 P.2d 160 (rape of a single victim once by several accused); People v. Enright (1934) 140 Cal.App. 649, 35 P.2d 1033 (multiple rape without indication as to what instruction, if any, was given).

Conceptually, the exception of continuous conduct resulting in but one offense is quite limited. There is a fundamental difference between a continuous crime spree and continuous conduct resulting in one specific offense. The continuous conduct exception only really applies, if at all, to those types of offenses where the statute defining the crime may be interpreted as applying, on occasion, to an offense which may be continuous in nature such as failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence and the like (see People v. White (1979) 89 Cal.App.3d 143, 151, 152 Cal.Rptr. 312 (pandering); People v. Ewing (1977) 72 Cal.App.3d 714, 717, 140 Cal.Rptr. 299 (child abuse); People v. Heideman (1976) 58 Cal.App.3d 321, 333, 130 Cal.Rptr. 349 (possession of a destructive device); People v. Feldman (1959) 171 Cal.App.2d 15, 25, 339 P.2d 888 (concealing stolen property); People v. Lowell (1946) 77 Cal.App.2d 341, 347-348, 175 P.2d 846 and People v. Schoonderwood (1945) 72 Cal.App.2d 125, 127, 164 P.2d 69 (contributing to the delinquency of a minor, but see People v. Dutra, supra, 75 Cal.App.2d 311, 321-322, 171 P.2d 41); People v. Knight (1939) 35 Cal.App.2d 472, 474, 96 P.2d 173 (driving under the influence); People v. Jarvis (1933) 135 Cal.App. 288, 309-310, 27 P.2d 77 (unlicensed fruit dealer); People v. Morrison (1921) 54 Cal.App. 469, 471, 202 P. 348 (failure to provide for minor child); People v. Simon, (1913) 21 Cal.App. 88, 90-91, 131 P. 102 (multiple acts to cause an abortion)). Insofar as cases cited herein might be read as holding that multiple sex offenses constitute a continuous course of conduct or a single act, we disagree. ⁵ Multiple sex acts cannot be held to be continuous conduct on a theory of there being but one act of sexual abuse. In People v. Perez (1...