People v. St. Andrew

• Decision Date: 28 January 1980
• Docket Number: Cr. 18747
• Citation: 161 Cal.Rptr. 634,101 Cal.App.3d 450
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clifford ST. ANDREW, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 634

161 Cal.Rptr. 634

101 Cal.App.3d 450

The PEOPLE, Plaintiff and Respondent, v. Clifford ST. ANDREW, Defendant and Appellant.

Cr. 18747.

Court of Appeal, First District, Division 1, California.

Jan. 28, 1980.

Hearing Denied March 27, 1980.

George T. Davis, Joseph C. Morehead, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Herbert F. Wilkinson, Ina Levin Gyemant, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

GRODIN, Associate Justice.

Defendant Clifford St. Andrew appeals from a judgment of conviction entered on jury verdicts finding him guilty of rape by threat (Pen.Code, § 261, subd. 3) and forcible oral copulation (Pen.Code, § 288a). The issues on appeal can best be understood and evaluated against the background of the rather unusual circumstances in which the crimes are alleged to have been committed.

The defendant was a hospital attendant working the night shift in the psychiatric ward of a San Francisco hospital. The prosecutrix, Mrs. S., was a patient in that ward. According to her testimony, the defendant came to her on the night of April 22, 1978, and over a period of about two hours during which he went in and out of her room a number of times, he made increasingly aggressive sexual advances to her, culminating in acts of oral copulation and sexual intercourse.

According to Mrs. S., the defendant said nothing during this period except for an early remark that she had "good stomach muscles" and that he would return to give her a body rub. Mrs. S. said nothing at all, she voiced no protest and she did not resist. In connection with the oral copulation, she explained, "I was afraid he would strike me or I was afraid he would smother me." During the period after the oral copulation, in which defendant was assertedly out of the room for a short period, Mrs. S. said she considered yelling for help or trying to resist in some way but decided against doing so because she was afraid the defendant would have her "sheeted" and placed in a locked room alone with him. ("Sheeting" consists of wrapping a patient in sheets in order to restrain her. Mrs. S. had been "sheeted" a few days earlier, as a result of a psychotic episode, and defendant had participated in that process.) After the act of intercourse, according to Mrs. S., the defendant said, "Now, this is confidential. This is just between you and me"; and she, still afraid, expressed agreement.

The defendant testified on his own behalf to the effect that his contact with Mrs. S. the night of April 22, 1978, was more or less routine. He denied any sexual contact with her. A pelvic examination of Mrs. S. disclosed no evidence of injury, nor of semen in her vaginal tract. A piece of Kleenex which Mrs. S. said she used to wipe herself with after the incident was found to contain semen containing secretions compatible with the blood and enzyme types of the defendant. They were also compatible with the blood and enzyme types of Mrs. S.'s husband, who visited her earlier that day. The defendant sought to convince the jury, and evidence was introduced both supporting and opposing that theory, that Mr. S. was responsible for the semen.

In addition to the offenses for which he was convicted, the defendant was initially charged by grand jury indictment with violating Penal Code section 261, subdivision 1, involving rape by means of intercourse with a person incapable of consent. After one day's deliberation the jury acquitted the defendant on that charge. After two additional days' deliberation the jury arrived at verdicts on the remaining two counts.

Defendant asserts a number of grounds for reversal. These include contentions (1) that the entire proceedings are void because the trial court failed to honor a peremptory challenge under Code of Civil Procedure section 170.6, or in the alternative that the failure of defendant's trial counsel to assert the challenge in proper form constituted denial of effective representation; (2) that the trial court abused its discretion in determining that the complaining witness was competent to testify; (3) that the trial court erroneously permitted the prosecution to introduce evidence of alleged prior misconduct on the part of defendant, and failed to instruct the jury as to the purpose for which such evidence could be considered; (4) that the trial court erred in refusing to give special instructions as requested by defendant, and in failing to provide a direct answer to a question by the jury with respect to the elements of the crime; (5) that the evidence fails to establish that the defendant threatened the prosecuting witness with great bodily harm; (6) that the grand jury indictment violated defendant's right to equal protection of the law; and (7) that the prosecution failed to present exculpatory evidence to the grand jury. We find merit in certain of these contentions, as discussed below, and, considering them in the aggregate, we conclude that we have no alternative but to reverse.

I

Appellant argues that the entire proceedings were invalid because the trial court failed to grant his trial attorney's peremptory challenge of the trial judge under Code of Civil Procedure section 170.6. This argument is based on the fact that when first informed by the presiding judge of the judge to which the case was assigned for trial, defense counsel made an oral motion to disqualify that judge on the ground that he was "informed and believe(d)" that the assigned judge would be prejudiced against his client. When the presiding judge denied that motion without comment, defense counsel repeated the challenge in the language of the code section, prefacing his remarks with the statement, "I declare under penalty of perjury. . . ." Again, the presiding judge denied the motion and ignored counsel's request for a statement of the basis for the denial. The case was thereupon tried before the judge to whom objection had been made.

Recognizing that the challenge was formally defective because not supported "by affidavit or declaration under penalty of perjury or an Oral statement under oath " (Code Civ.Proc., § 170.6, subd. (2)), appellant argues that the trial judge erred in denying the motion because there was "substantial compliance" with the statute, or in the alternative that failure of defendant's trial counsel to support the motion in proper form constituted a failure to act "in a manner to be expected of reasonably competent attorneys acting as diligent advocates," depriving defendant of his constitutional right to representation by effective counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 739, 590 P.2d 859, 866.) We find the first alternative contention to be without merit. The oath or verification requirement in section 170.6 is more than a "hollow formality"; it is an essential part of the statutory scheme of safeguards bearing upon the constitutionality of the disqualification statute. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 197, 137 Cal.Rptr. 460, 561 P.2d 1148.) The denial per se was, therefore, not improper. We do agree, however, that trial counsel should have been aware of the formal requirements, and that his failure to assert the motion in proper form constituted a departure from the standard of professional competency applicable under Pope. We have serious reservations also concerning the trial court's opaque silence in the face of defense counsel's obvious lack of awareness and request for explanation of the court's ruling. While it is not a judge's function to substitute for counsel in the trial of a case, the judge is " 'not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts between the parties who have sought the protection of our courts.' " (People v. Carlucci (1979) 23 Cal.3d 249, 256, 152 Cal.Rptr. 439, 444, 590 P.2d 15, 20, quoting from Estate v. Dupont (1943) 60 Cal.App.2d 276, 290, 140 P.2d 866.) Thus, it has been held that it is the duty of a trial judge to see that a case is not defeated by "mere inadvertence" (Hellings v. Wright (1916) 29 Cal.App. 649, 656, 156 P. 365), or by "want of attention" (Bare v. Parker (1921) 51 Cal.App. 106, 108, 196 P. 280), and "to call attention to omissions in the evidence or defects in the pleadings" which are likely to result in a decision other than on the merits. (Farrar v. Farrar (1919) 41 Cal.App. 452, 457, 182 P. 989, 991. See also Miller v. Republic Grocery, Inc. (1952) 110 Cal.App.2d 187, 192, 242 P.2d 396.) For a trial court to remain silent in the face of an obviously inept attempt on behalf of a criminal defendant to assert a right created by the Legislature, when a simple statement of the procedural requirement would presumably have cured the defect on the spot and without prejudice to the interests of any party, constitutes, under the circumstances of this case, an unwarranted abdication of the judicial role.

II

When the prosecution first presented Mrs. S. as a witness at the trial, defendant's trial counsel objected on the ground that she was incompetent under Evidence Code sections 701 ¹ and 702. ² After a hearing in chambers at which Mrs. S. and Dr. Kessler, a court-appointed psychiatrist, appeared and testified, the court overruled that objection. Appellant contends that the ruling constituted an abuse of discretion.

In People v. McCaughan (1957) 49 Cal.2d 409, 317 P.2d 974, the Supreme Court set forth certain principles applicable to the determination of competency of a witness suffering from mental derangement or defect. These principles include the following: (a) "The question to be determined is whether the proposed witness's mental derangement or defect is such that he was deprived of the ability to perceive the event about which h...