People v. Merriam

• Decision Date: 19 April 1967
• Docket Number: Cr. 10651
• Citation: 58 Cal.Rptr. 1,426 P.2d 161,66 Cal.2d 390
• Court: California Supreme Court
• Parties: , 426 P.2d 161 The PEOPLE, Plaintiff and Respondent, v. Russell Glenn MERRIAM, Jr., Defendant and Appellant. In Bank

Page 1

58 Cal.Rptr. 1

66 Cal.2d 390, 426 P.2d 161

The PEOPLE, Plaintiff and Respondent, v. Russell Glenn MERRIAM, Jr., Defendant and Appellant.

Cr. 10651.

Supreme Court of California,

In Bank.

April 19, 1967.

Joseph DeCristoforo, Sacramento, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Stephen Cooper, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Associate Justice.

Defendant was charged by information with two counts of indecent exposure (Pen.Code, § 314, subd. 1), ¹ a misdemeanor. The information also charged a prior conviction of the same crime in December of 1963. Defendant, represented by counsel, pleaded not guilty to each count of the information but admitted the prior conviction. A jury found him guilty as charged. After appropriate diagnotic proceedings (Welf. & Inst.Code, § 5500 et seq.; Pen.Code, § 1203.03), defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

The offense charged in the second count was prior in time to that charged in the first. Since counsel for both parties in their briefs have discussed the two incidents in chronological order, we will do the same.

Count Two (Mrs. Wolf incident)

On the morning of March 12, 1965, Mrs. Alyce Wolf was sitting alone in the living room of her basement apartment when she felt a draft of cool air and noticed that the door between the living room and a back storeroom was open. She went to the door, then decided to check some clothes that she had hanging in the storeroom. In the storeroom she found defendant. He was naked, having placed his clothes on a table in the room, and he was masturbating. She demanded that he leave, and when he would not, she grabbed his arm and attempted to dislodge him from the corner in which he was standing. During the struggle she observed his emission. Defendant would not be dislodged from his corner but he said that if Mrs. Wolf would leave him alone for a few minutes he would leave the premises. Mrs. Wolf went to seek help from one of the upstairs tenants, but the tenant was not at home so she returned to her apartment and called the police. ² She went to the front of the house to await their arrival, and while she was waiting she peered through a broken pane in her garage door and saw defendant kneeling down and tying his shoes. She said to him 'You're still here; I want you to get out.' He looked up at her, and departed through the back door of the garage. The police arrived shortly thereafter and Mrs. Wolf showed them the storeroom area. A day or so later she noticed on one of the clothing bags in the storeroom a stain which subsequent chemical analysis proved to be semen. About three days after the incident defendant was brought to Mrs. Wolf's apartment in the custody of police, and she identified him at that time.

Count One (Mrs. Walker incident)

On the afternoon of May 3, 1965, Mrs. Esperanza Walker was at a laundromat washing clothes. Except for the owner's son, who was painting at the front of the building, she was alone in the establishment. Defendant entered through the back door and stood near another doorway while Mrs. Walker folded clothes at a table. She looked up and saw that he had exposed himself and was holding his penis in his hand, facing her. She was momentarily uncertain as to what to do, and she continued folding clothes as she watched him out of the corner of her eye. Defendant then moved out of her sight behind a wall, and Mrs. Walker went to the front of the store to seek assistance from the owner's son.

The latter, Mr. Howard, testified that after Mrs. Walker had spoken to him he walked out of the rear entrance of the laundromat and observed defendant hurriedly backing a car out of a parking space; that defendant collided with a garage door; that Mr. Howard told him the whereabouts of the owner of the garage and defendant left his car to look for the owner; that he (Mr. Howard) then returned to the laundromat and summoned his father, who had been working in the boiler room; that the two returned to the parking lot and observed defendant returning to his car; that they told defendant that a lady within the laundromat had a complaint against him; and that defendant returned with them to the laundromat and was identified by Mrs. Walker.

Defendant did not testify but he presented two witnesses in defense to the accusation of Mrs. Wolf. Richard Warren, the admissions officer at the college where defendant was a student, testified that after defendant's arrest he had gone to Mrs. Wolf and had asked to see the scene of the incident. She complied with his request, and he noted that the garage, where Mrs. Wolf had observed defendant through the broken windowpane tying his shoe, was quite dark even during daylight hours. Donald Biagi, the captain of the college track team, of which defendant was a member, testified that he saw and spoke with defendant at school during or near the period of time defendant was alleged to have committed the offense in Mrs. Wolf's storage room. ³ No defense was made to the charges involving Mrs. Walker.

Defendant first contends that the trial court erred when it refused to give a cautionary instruction to the effect that, in prosecutions for sex offenses, accusations are easy to make and difficult to disprove, and the testimony of complaining witnesses should be examined with caution. We observe that instructions of this kind, though originally required only in cases of forcible rape (see People v. Benson (1856) 6 Cal. 221), are now mandatory in many other kinds of sex prosecutions, ⁴ and that in some of the cases there is language indicating that failure to give the instruction in any 'sex case' is error, whether or not such an instruction is requested by defendant. (See People v. Sutton (1964) 224 Cal.App.2d 708, 710--711, 38 Cal.Rptr. 23.)

In People v. McGhee (1954) 123 Cal.App.2d 542, at page 544, 266 P.2d 874, at page 876, it was stated that 'The reasons given for requiring the cautionary instruction in cases involving sex offenses, particularly where the testimony of the complaining witness is uncorroborated * * * are (1) the fact that the only available direct witnesses are ordinarily the complaining witness and the defendant, and hence the charge is easy to make and difficult to disprove; (2) cases involving sex crimes generally arouse passion and prejudice in the minds of decent people, including jurors; (3) the ease with which the charge can be made to satisfy spite, vengeance, vindictiveness and other base motives.' The Attorney General here urges that the bulk of these reasons are not applicable to prosecutions brought pursuant to section 314 of the Penal Code. First, it is pointed out that indecent exposure often occurs in public places, so that fabrication is rendered more difficult. Second, the 'victim' of indecent exposure is not 'molested' in any physical sense, so that passion and prejudice on the part of jurors is less likely to be a factor. Finally, the usual case of indecent exposure does not involve a pre-existing personal relationship which could give rise to motives of private vengeance.

It is quite true that indecent exposure prosecutions do not involve the substantial dangers of fabrication, whether or not based on motives of private vengeance, that are present in other kinds of sex offenses. (See and compare, People v. McGhee, supra, 123 Cal.App.2d 542, 266 P.2d 874.) However, it must be conceded that the kind of act here at issue is so thoroughly repugnant to the average person that it can breed that righteous outrage which is the enemy of objective fact finding. In addition, the shocking nature of the act might well lead a complaining witness to hasty identification of the alleged perpetrator. For these reasons we hold that one charged with violation of section 314 of the Penal Code should be afforded the protection of a cautionary instruction, and that failure to so instruct constitutes error--regardless of whether or not the instruction is requested. (Cf. People v. Putnam (1942) 20 Cal.2d 885, 888--892, 129 P.2d 367.)

It remains to be determined, however, whether in the circumstances of this case the trial court's erroneous refusal of the cautionary instruction resulted in prejudice to the defendant. It has been said that such refusal does not constitute prejudicial error if 'the evidence clearly points to the defendant's guilt, or * * * the testimony of the prosecuting witness is amply corroborated, or there are other factors in the case which show that the defendant has been given a fair trial.' (People v. Owsley (1946) 76 Cal.App.2d 166, 169--170, 172 P.2d 561.) The application of this standard to the instant case compels the conclusion that no prejudice accrued to defendant as a result of the trial court's failure to give the requested instruction.

In the first place, the testimony of each of the complaining witnesses was clear, assured, and free from indications of inconsistency, improbability, or fabrication. (See People v. Stangler (1941) 18 Cal.2d 688, 693--695, 117 P.2d 321; cf. People v. Benson, supra, 6 Cal. 221.) Secondly, each of the complaining witnesses had ample opportunity to observe defendant for purposes of identification, and the record reveals that searching cross-examination in no way weakened their respective convictions as to the identity of the wrongdoer. Thirdly, other witnesses gave evidence of circumstances and facts in corroboration of the primary testimony. The testimony of Mrs. Wolf was lent plausibility by the notation in the police log evidencing her call at the time of the offense, and by the presence of semen stains upon the clothes bag in her storeroom. Mrs. Walker's testimony was supported by that of Mr. Howard. Certainly, the testimony of each of the complaining witnesses reveals no motive of private...