People v. Pacheco

• Decision Date: 17 September 1963
• Docket Number: Cr. 1873
• Citation: 33 Cal.Rptr. 735,220 Cal.App.2d 320
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bulmaro PACHECO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 735

33 Cal.Rptr. 735

220 Cal.App.2d 320

The PEOPLE, Plaintiff and Respondent, v. Bulmaro PACHECO, Defendant and Appellant.

Cr. 1873.

District Court of Appeal, Fourth District, California.

Sept. 17, 1963.

Hearing Denied Nov. 13, 1963.

Smith, Prante & Biggins, and Stafford W. Prante, San Diego, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and H. Warren Siegel, Deputy Atty. Gen., for plaintiff and respondent.

COUGHLIN, Justice.

The defendant was indicted for three sex offenses involving an eight year old boy, hereinafter referred to as the victim; was charged therewith in three counts, viz., with two violations of Penal Code, § 288a, i. e., acts of sex perversion, and one violation of Penal Code, § 288, i. e., lewd and lascivious conduct with a child; was tried before a jury and found guilty; on March 15, 1961, was declared to be a sexual psychopath and committed to Atascadero State Hospital for an indeterminate period for treatment; on August 20, 1962, was remanded to the Superior Court as a person who would not benefit from further treatment and was not a menace to the health and safety of others; applied for probation, which was denied; was sentenced to the state prison; and appealed from the judgment.

The defendant was a grade school teacher. The victim of his offenses was one of his pupils. The offenses occurred in the night time at the home of the victim while the latter's mother, accompanied by his father, was at a hospital giving birth to her fourth child, and during the time when the defendant was caring for their children as a neighborly accommodation. The defendant and the victim lived in adjoining homes; enjoyed neighborly and friendly relations, as did other members of their families; and the latter had visited the home of the former on a number of occasions.

Three grounds are urged for reversal, viz., (1) error in restricting the defendant's cross-examination of the victim; (2) error in permitting the victim's mother and a deputy sheriff to testify to hearsay statements made to them by the victim; and (3) error arising out of comments made by the judge in the presence of the jury.

During the course of the victim's cross-examination by counsel for the defendant, the latter sought to develop that the former had undressed a little girl; at first had denied the incident; and, thereafter had admitted it. Objections to questions which would develop these facts were sustained. In the course of a discussion between court and counsel out of the presence of the jury concerning defendant's right to interrogate the witness with respect to this incident, counsel for the defendant made an offer of proof indicating his intention in the premises as outlined, and also offered to prove that the victim had made 'another report against another man in New York.' This offer was made upon the then stated ground that proof of other reports by a complaining witness were admissible; that the incident involving the little girl included the making of a report of the same by the victim to his mother; that the New York incident also involved the making of a report; and that interrogation of the complaining witness with respect to any such report, whether true or false, was permissible. This position was based upon a mistaken concept respecting the decision in People v. Hurlburt, 166 Cal.App.2d 334, 338-343, 333 P.2d 82, 75 A.L.R.2d 500. The decision in question concerns interrogation with respect to the making of false reports. The defendant did not offer to prove that the alleged reports to which he referred were false.

The incident which involved the undressing of the little girl, obviously, did not come within the rule permitting interrogation with respect to prior false reports. It would appear that the defendant was attempting to impeach the complaining witness by showing that the latter had engaged in a prior unchaste act. The objection thereto properly was sustained. (People v. Stice, 165 Cal.App.2d 287, 289, 331 P.2d 468; People v. Whalen, 70 Cal.App.2d 142, 149, 160 P.2d 560.)

The offer to prove that the victim had made 'another report against another man in New York,' without any showing that such report was false, in effect, constituted an offer to prove inferentially that the victim had been involved in an act with a man in New York similar to that in which he was engaged with the defendant. Proof that the victim had engaged in immoral acts with a man in New York, or had made a report to this effect, did not disprove that he had engaged in similar acts with the defendant. (People v. Stice, supra, 165 Cal.App.2d 287, 289, 331 P.2d 468; People v. Pilgrim, 160 Cal.App.2d 528, 530, 325 P.2d 143.) The objection thereto properly was sustained.

On appeal, the defendant makes the further contention that his cross-examination of the victim in the area noted was exploratory; was authorized by the decision in People v. Burton, 55 Cal.2d 328, 344, 11 Cal.Rptr. 65, 359 P.2d 433; and its curtailment was prejudicially erroneous. At the discussion between court and counsel heretofore referred to, the latter did not premise his right to ask the questions to which objection was made on the ground that his examination was exploratory. To the contrary, it appeared that he was possessed of information which prompted the interrogation he wished to make. He made an offer of proof in support of his position. Insofar as his inquiry was directed to a report made about a man in New York, the information which furnished him with the basis of his offer of proof in this regard certainly was available to ascertain whether that report was true or false.

The defense should be allowed wide latitude in the cross-examination of a complaining witness in sex offense cases. (People v. Burton, supra, 55 Cal.2d 328, 343-344, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Hurlburt, supra, 166 Cal.App.2d 334, 338, 333 P.2d 82.) On the other hand, the trial court is charged with the duty of seeing that this privilege of cross-examination is not abused. (People v. Hurlburt, supra, 166 Cal.App.2d 334, 343, 333 P.2d 82.) In some instances such cross-examination may be curtailed because of the prejudicially immaterial implications attendant upon particular questions propounded in the course thereof. (People v. Burton, supra, 55 Cal.App.2d 328, 354, 11 Cal.Rptr. 65, 359 P.2d 433.) Because the field of permissible cross-examination in such cases is wide, the trial judge must be given broad discretion to keep it within reasonable bounds. (People v. Burton, supra, 55 Cal.2d 328, 343, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Jones, 207 Cal.App.2d 415, 421, 24 Cal.Rptr. 601.) We find no abuse of that discretion...