People v. Mullin

• Decision Date: 29 November 1961
• Docket Number: Cr. 15
• Citation: 17 Cal.Rptr. 516,197 Cal.App.2d 479
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Mervin M. MULLIN, Sheriff of the County of Tuolumne, State of California, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 516

17 Cal.Rptr. 516

197 Cal.App.2d 479

PEOPLE of the State of California, Plaintiff and Respondent, v. Mervin M. MULLIN, Sheriff of the County of Tuolumne, State of California, Defendant and Appellant.

Cr. 15.

District Court of Appeal, Fifth District, California.

Nov. 29, 1961.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws, Deputy Atty. Gen., for respondent.

T. R. Vilas, Sonora, for appellant.

STONE, Justice.

Facts.

Appellant, the sheriff of Tuolumne County, took office January 1, 1959. He had been a California Highway Patrol Officer in that County for twenty-seven years preceding his election and qualification as sheriff. An accusation was returned by the Grand Jury charging him with willful misconduct in office. The charge was based upon appellant's handling of an incident concerning one Donna Huff, then fifteen years of age, who complained to appellant that her father had been molesting her. The accusation consisted of one count, which charged:

'That said Mervin M. Mullin did on or about the 21st day of June, 1959, willfully refuse to investigate a complaint made to him by Donna Huff, now Donna Huff Bailey, accusing her father, Dan L. Huff, of the commission of the crime of a violation of Section 285 of the Penal Code of the State of California, alleged to have occurred in the County of Tuolumne, State of California, within one year prior thereto; and did willfully conceal the commission of the alleged offense from the juvenile authorities, from the District Attorney of Tuolumne County, from the Grand Jury of Tuolumne County, and from any Judicial District Court of Tuolumne County having jurisdiction to issue a Warrant of Arrest on such charge; and did willfully fail and refuse to furnish protection to the said Donna Huff Bailey, who was then a minor female of the age of 15 and did willfully force and compel her to return to the home of her parents with no criminal or protective action or proceeding being taken to protect said minor from the further commission of such felonious acts upon her by her father.

'That during all said times hereinabove mentioned the said Mervin M. Mullin was the duly elected, qualified and acting Sheriff-Coroner of the County of Tuolumne, State of California'.

A jury found the sheriff guilty as charged. His motion for a new trial was denied, and this appeal followed.

On June 24, 1959, Donna Huff was with her father at his logging camp in the Sugar Pine area of Tuolumne County. On that day a Mrs. Rivera, Donna's aunt, reported to Deputy Sheriff Lux that the girl had complained that her father was molesting her. Deputy Lux orally advised the sheriff of the incident, and then made a written report. Appellant told Lux that the girl's mother had telephoned him from Mountain View saying that she would be at the sheriff's office the following morning with an attorney. Appellant and his deputy made no effort to located Donna that day. The following morning the father and the girl drove to the town of Twain Harte to obtain supplies. The girl slipped away, telephoned the sheriff's office from a restaurant, and hid in the restroom until a deputy named Webb arrived. Donna accompanied him to the sheriff's office, where appellant took her into a separate room for interrogation. No one else was present, and there is sharp disagreement as to what was said. Appellant testified to the substance of the conversation as follows:

'Well, I asked her if her father had molested her, and she said that he had, and I asked her, 'Now,' I says, 'You are sure of this, are you?' And she says, 'Yes.' And I said, 'When did this take place?' and she kind of shrugged her shoulders. Well, she didn't know just exactly, and I said, 'Was it last night, yesterday, or the night before, or when was it" She says, 'Well, several days ago.' And so I said, 'You know this is a serious charge' I says, 'If we bring this against your father, you may have to testify against him in court' and she says, 'I don't want to testify against my father', and I says, 'Well, do you realize what this is all about now? You may have to testify.' She says, 'Well, I won't testify. All I want to do is get away from my father and the sticks,' and she says, 'I'm old enough to take care of myself.''

The alleged refusal of the girl to testify against her father is the sheriff's excuse for not making an investigation; his reason for failing to notify the juvenile authorities of the girl's charges; and his justification for not delivering the girl to juvenile authorities or to otherwise protect her.

The girl denied that appellant discussed the details of the case with her at the jail, stating that after a short preliminary conversation he invited her to go to his house to shower and put on some clean clothes. Further, she denied ever refusing to testify against her father or at any time refusing to cooperate with the authorities.

Appellant took the girl to his home, where his wife and his niece helped her bathe; they also furnished her clean clothing and they gave her lunch. After lunch, Mrs. Rivera, the aunt, and an attorney, a Mr. De Goia, arrived at appellant's home. De Goia was attorney for the brother of Donna's father, and he had driven to Sonora from Mountain View that day with the uncle and Donna's mother. After some conversation, Donna's aunt left the house, but De Goia remained. Later De Goia accompanied Donna out of the house and to the car. The testimony concerning the manner of Donna's leaving with De Goia is conflicting. Her testimony was that she refused to leave with him because she feared that he would take her to her father. She also testified that she pleaded with appellant for help and asked permission to remain, but that the sheriff ignored her entreaty and let De Goia take her by the arm and force her out of the house.

The attorney, the mother and Donna drove to Mountain View, where Donna stayed with her mother approximately four days. The entire family then returned to their home in Tuolumne County. Donna testified that within two weeks her father was again having intercourse with her, and that he also forced her to commit acts of oral copulation upon him. Later the family moved to Marin County, and on May 23, 1960, the father was charged by an information filed in the Superior Court of that County with three counts, one, the statutory rape of his daughter on March 20, 1960; two, incest, occurring March 20, 1960; and, three, violation of Penal Code section 288a, occurring March 27, 1960. De Goia appeared as the father's attorney in the Marin County action. The father pleaded guilty to the charge of statutory rape, whereupon the counts charging incest and violation of Penal Code section 288a were dismissed 'in the interests of justice.' Following his plea of guilty, the father was first temporarily committed as a sexual psychopath, and later committed for an indeterminate period. A certified copy of each proceeding was admitted in evidence on the theory that these documents rehabilitated the testimony of Donna.

Questions Raised on Appeal.

The following four grounds of appeal are asserted: (1) errors in instructions given covering willful misconduct and in the court's refusal to give instructions submitted by defendant covering the same subject; (2) insufficiency of the evidence to support the charges of (a) concealment of the crime from other county officials, and (b) failure to provide protection for Donna Huff; (3) prejudicial misconduct of the district attorney by his remarks during argument to the jury; (4) error by the court in admitting into evidence certified copies of the record of subsequent proceedings in Marin County, under the doctrine of rehabilitation.

Instructions--Willful Misconduct in Office.

An accusation which is statutory in origin is presently embodied in Government Code, section 3060, former Penal Code section 758. Government Code section 3060 provides that:

'An accusation in writing against any officer of a district, county, or city, for wilful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer accused is elected or appointed. An accusation may not be presented without the concurrence of at least 12 grand jurors.'

Since appellant is not charged with corrupt misconduct, we are concerned only with 'wilful misconduct,' a term so general in scope that we must look to the authorities for its interpretation. It has been held that misconduct need not include an act which would itself constitute a crime, since the main purpose of an accusation is to remove a person from a public office. (In the Matter of Burleigh, 145 Cal. 35, 37, 78 P. 242.)

In People v. Harby, 51 Cal.App.2d 759, 767, 125 P.2d 874, the court decided that the misconduct upon which an accusation may be predicated does not necessarily imply corruption or criminal intention. (See, also, People v. Elliott, 115 Cal.App.2d 410, 414, 252 P.2d 661.) Misconduct means simply a purpose or willingness to commit the act. (People v. Becker, 112 Cal.App.2d 324, 326, 246 P.2d 103; Pen.Code, § 7, subd. 1.) The Supreme Court said, in Coffey v. Superior Court, 147 Cal. 525, 529, 82 P. 75, 76, 'The phrase 'misconduct in office' is broad enough to include any willful malfeasance, misfeasance, or nonfeasance in office.' (See People v. Harby, supra.)

With the foregoing exposition of the term 'willful misconduct' in mind, we turn to appellant's contention that the trial court erred by refusing to give two instructions preferred by him. One reads as follows:

'Defendant's Instruction No. 3

'You are instructed that the accusation in this case charges the defendant with wilful misconduct in office. Accordingly, the defendant cannot be convicted unless it is proved to a moral certainty and beyond all reasonable doubt that he wilfully and intentionally did the acts charged or neglected to perform the duties charged, with intent to commit misconduct,...