People v. Mansfield

• Decision Date: 11 April 1988
• Docket Number: No. F008003,F008003
• Citation: 200 Cal.App.3d 82,245 Cal.Rptr. 800
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Alan MANSFIELD, Defendant and Appellant.

Page 800

245 Cal.Rptr. 800

200 Cal.App.3d 82

The PEOPLE, Plaintiff and Respondent, v. David Alan MANSFIELD, Defendant and Appellant.

No. F008003.

Court of Appeal, Fifth District, California.

April 11, 1988.

Certified for Partial Publication ^*.

Review Denied July 21, 1988.

Review Denied July 21, 1988.

[200 Cal.App.3d 84] Thomas J. Keene, under appointment by the Court of Appeal, Merced, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Roger E. Venturi and Janet Bangle, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, ^** Associate Justice.

Appellant, David Alan Mansfield, was found guilty by a jury of one count of lewd and lascivious conduct upon a child under 14 years of age (Pen.Code, § 288, subd. (a)) ¹ and two counts of misdemeanor child molestation (§ 647a--now 647.6). He was found not guilty on an additional five counts and one count was dismissed after the jury could not agree as to that count. Imposition of sentence was suspended and appellant was placed on probation for three years on condition he serve 12 months in the county jail. He appeals. We will reverse.

FACTS

On February 8, 1986, April G. went to visit and spend the night with her friend, the victim, Lisa B. Two days earlier, Lisa had turned 12 years old. Appellant was present at the apartment in Atwater occupied by Lisa and her mother at this time, for Lisa's mother, a friend of appellant's, had permitted him to move in with them several months earlier.

Lisa testified that on this evening in February of 1986 she and April played a wrestling game with appellant, after which April and Lisa sat on appellant's lap. Appellant began rubbing Lisa's thigh through her pants leg, and was breathing on her neck. At this time April noticed what was happening and she suggested that she and Lisa go upstairs to Lisa's room, which is what the girls did. According to April, Lisa asked her not to tell because Lisa was afraid she might get into trouble, and then Lisa cried. About an hour later, Lisa and April went back down to the living room to watch a movie. When Lisa moved to the couch, appellant got out of his chair and moved to the couch. After April fell asleep during the movie, appellant rubbed Lisa's chest, kissed her on the mouth, and took off her shirt and kissed her on the breasts. He then took off her pants, kissed her on the vagina, and put his tongue inside her vagina. He took off his clothes and attempted to penetrate her vagina with his penis, but when April stirred appellant got up and left Lisa alone.

On March 12, 1986, appellant moved into the new residence that Lisa and her mother had just moved into. A couple of weeks after this, while Lisa's mother and her live-in fiance were asleep in a bedroom, Lisa and appellant were in the living room watching television. Lisa testified appellant began kissing her on the lips, took off her shirt, took off her pants, and began kissing her on the vagina. He put his tongue into her vagina, then tried to insert his penis into it. Lisa resisted, got away, and retreated to her bedroom.

Approximately two weeks after this, on a Sunday evening, Lisa and appellant were watching television in the living room. After a time, each retreated to their respective rooms. However, Lisa's television set was not working correctly, so she asked appellant if she could watch the remainder of the program on the set in his bedroom. Appellant agreed, so Lisa went into the room, sat on the floor, and watched the show while he sat on the bed. Because she was having a hard time seeing the set and became uncomfortable, she got onto the bed with him. Lisa testified that at this time appellant again began kissing her on the lips. Appellant then took off Lisa's shirt, began kissing her on her breasts, removed her pants, began kissing her on the vagina, and attempted penetration with his tongue. He also attempted penetration with his penis, but was interrupted by a knock on the door. Lisa's mother had knocked on the door, but went downstairs and into the kitchen when she heard a noise downstairs. Appellant stopped after the knock and let Lisa get dressed. Lisa's mother returned to the bedroom and found Lisa lying on a pile of blankets in front of the television set, while appellant was lying on the bed. She then told Lisa that it was time for Lisa to go to bed, so Lisa retreated to her bedroom.

Throughout all of this, Lisa was afraid to tell her mother because she was afraid appellant would hurt her. She was also afraid of her mother's temper and that it could cause her mother and her mother's fiance not to get married. Appellant and the fiance were friends.

The investigation that led to the charges in this case came about when April and another of Lisa's friends, Carrie, became worried about Lisa and told the school authorities what had happened.

THE DEFENSE'S CASE

Appellant took the stand in his own defense and testified no improper contact between him and Lisa had ever taken place.

Appellant called as witnesses his mother and brother, who each stated Lisa did not have a very good reputation for telling the truth. Appellant also called as a witness a former live-in lover of Lisa's mother who testified Lisa had, on one occasion, made up a story about him being her "boyfriend," and sitting on the couch together, "touching and kissing."

Appellant called as a fourth witness a man who testified he observed appellant and Lisa together during February through March 1986 and, in his opinion, Lisa did not fear appellant at this time. Lastly, appellant called the police officer who had investigated this case, Detective Richard Hawthorne. Detective Hawthorne testified that when he had originally interviewed Lisa she referred to appellant touching her breasts, rather than rubbing her thigh, in summarizing the first incident in February.

DISCUSSION

I

The crucial issues in this case arise out of the denial by the trial court of appellant's pre-jury impanelment motion to disallow the use of a prior felony conviction of felony battery (§ 243, subd. (d)) ² for impeachment. ³ Appellant testified in the instant case, and the prior felony was used to impeach him. CALJIC No. 2.23, ⁴ which instructs the jury in substance that prior felony convictions can be used only for the purpose of determining credibility, was not given. It is conceded by respondent to be a sua sponte instruction.

We will conclude that a prior conviction of violating section 243, subdivision (d) (felony battery) does not qualify under People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 as a felony involving moral turpitude and therefore should not have been used to impeach appellant and we will further decide that the error, under the circumstances of this case, was prejudicial.

Pursuant to People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, and subject to the trial court's discretion under Evidence Code section 352, only prior felony convictions that necessarily involve moral turpitude may be used to impeach a witness in a criminal proceeding. ( Id. at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.) "Moral turpitude" means a general " 'readiness to do evil' " ( id. at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.), i.e., "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (In re Craig (1938) 12 Cal.2d 93, 97 ; 2 Bouvier's Law Dict. (3d rev. 1914) p. 2247; 1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 375, pp. 424-425; see also Annot. (1975) 23 A.L.R.Fed. 480, 488 involving exclusion or deportation of aliens under Federal Immigration and Naturalization Act.) Castro makes no attempt to list or define those felonies which involve moral turpitude, but it makes clear that moral turpitude does not depend on dishonesty being an element of the felony. "[I]t is undeniable that a witness' moral depravity of any kind has some 'tendency in reason' (Evid.Code, § 210) to shake one's confidence in his honesty." ( People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111; emphasis added.)

Finally, Castro holds that in deciding whether a felony offered for impeachment necessarily involves moral turpitude, the trial court may look only to the "least adjudicated elements" of the crime for which the witness was previously convicted. ( Id. at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.) This concept simply means that in determining whether a previous felony involves moral turpitude the court cannot go behind the conviction and take evidence on or consider the facts and circumstances of the particular offense. Instead, the court must look to the statutory definition of the particular crime and only if the least adjudicated elements of the crime necessarily involve moral turpitude is the prior conviction admissible for impeachment purposes. (People v. Statler (1985) 174 Cal.App.3d 46, 53, 219 Cal.Rptr. 713.)

"A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242, emphasis added.) The word "violence" has no real significance. "It has long been established, both in tort and criminal law, that 'the least touching' may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark." (1 Witkin, Cal. Crimes, (1963) Crimes Against The Person, § 258, pp. 243-244; see People v. Bradbury (1907) 151 Cal. 675, 676, 91 P. 497; People v. Cavazos (1985) 172 Cal.App.3d 589, 594, 218 Cal.Rptr. 269; People v. Whalen (1954) 124 Cal.App.2d 713, 720, 269 P.2d 181.) A person need not have an intent to injure to commit a battery. He only needs to intend to commit the act. (1 Witkin,supra, § 258, subd. 3, p. 244.) Thus, a simple battery...