People v. Sylvia
| Decision Date | 10 May 1960 |
| Docket Number | Cr. N |
| Court | California Supreme Court |
| Parties | , 351 P.2d 781 PEOPLE, Respondent, v. Herman SYLVIA, Appellant. o. 6566. |
Herman Sylvia, in pro. per., and Earl Klein, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert M. Sweet, Deputy Atty. Gen., for respondent.
A hearing was granted in this case because of a number of procedural errors that occurred in the court below. These procedural irregularities involved substantial delays in obtaining the record on appeal, claimed omissions from the record, and claimed errors in preparing and certifying the record. Serious charges were made against the attorney who had been retained by appellant to present the appeal. Most of these errors were cured by the granting of this petition, by permitting defendant to employ his present counsel, and by permitting such counsel to file supplemental briefs.
Defendant was charged with four separate sex crimes. Counts one and two charged violations of sections 288a and 288 of the Penal Code, respectively, with one Barbara, then twelve years of age. Count three charged a violation of section 288 of the Penal Code upon the body of Patty, then a ten-year-old child. Count four charged the statutory rape of one Sandra, then sixteen years of age. The rape charge, on motion of the prosecution, was dismissed during the trial.
On the merits, the case is not a close one. The defendant was tried before the court, a jury having been waived. He was found guilty of the offenses charged in counts one and three and not guilty of the offense charged in count two. The court then appointed two psychiatrists to examine defendant and to report back to the court their opinions as to whether or not he was a sexual psychopath. On the basis of their reports, the court found defendant to be a sexual psychopath and ordered that he be committed to the Atascadero State Hospital for a period not to exceed 90 days for observation and diagnosis. The superintendent of the hospital thereafter submitted to the court his opinion that defendant was a sexual psychopath and that he could benefit from care and treatment. The court then ordered that defendant be committed to the hospital for an indeterminate period.
Defendant spent a year at Atascadero State Hospital and then was returned to the court. Criminal proceedings were reinstated, probation was denied and defendant was sentenced to the state prison.
The record discloses, regarding count one, the following facts which are supported by substantial evidence. On October 2, 1954, defendant took Barbara, then age 12, to the Los Angeles County Fair at Pomona. Defendant picked her up at noon at her home in Rialto, where she lived with her parents and sister. Defendant had known Barbara's family for approximately two years, and, when he stated that he wanted to take Barbara and another girl, named Sandra, to the fair, Barbara's mother consented on condition that Sandra went along with them. Barbara and defendant drove to the fair in defendant's car but did not take Sandra with them. They left the fair at 8 o'clock that night and started back home. Somewhere between Ontario and Colton, defendant stopped his car on the dirt shoulder of the freeway and then asked Barbara to participate in the act of perversion described in section 288a of the Penal Code. Barbara finally consented and the act was committed. Defendant then drove back to Barbara's home, arriving at about 10 o'clock. He accompanied Barbara into the house and apologized to her mother for bringing the girl home late. Barbara made no complaint to her parents about defendant's conduct, and never mentioned it to anyone until the summer of the following year when she was questioned by a policy officer.
Defendant, at the trial, denied the conduct described by Barbara, but her testimony was corroborated by admissions made by defendant to the policy officers after his arrest.
There is also substantial evidence to support the conviction under count 3. Suffice it to say that the record discloses that the defendant copulated his mouth with the private parts of Patty, a ten-year-old child. This, of course, is sufficient to show a violation of Penal Code, § 288, the crime charged in count 3.
Defendant's primary contention is that the trial court committed prejudicial error in admitting into evidence testimony and photographs involving other offenses than those charged. Four separate errors are alleged.
The first concerns the introduction, over objection, of an admission by defendant that he committed on Barbara, another and separate act than the one charged.
While it is true that evidence of other crimes is generally inadmissible (People v. Wade, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Albertson, 23 Cal.2d 550, 576, 145 P.2d 7; Witkin, California Evidence, § 135, p. 158), there are a number of exceptions to the rule. Thus, evidence of other offenses is admissible if material to the proof of the crime charged (People v. Kynette, 15 Cal.2d 731, 746, 104 P.2d 794; People v. Piascik, 159 Cal.App.2d 622, 628, 323 P.2d 1032), to show motive, intent or knowledge (People v. Westek, 31 Cal.2d 469, 480, 190 P.2d 9), and to show a common plan or scheme (People v. Peete, 28 Cal.2d 306, 317, 169 P.2d 924). In cases involving sex crimes, evidence of other not too remote sex offenses with the prosecuting witness is admissible to show a lewd disposition or the intent of the defendant towards the prosecuting witness. People v. Wertz, 145 Cal.App.2d 395, 399, 302 P.2d 613; People v. LaMantain, 89 Cal.App.2d 699, 701, 201 P.2d 598; Witkin, California Evidence, § 136, p. 159. The latter rule is applicable here. There was no error in receiving into evidence defendant's admission. No objection was raised or could be raised as to the remoteness of the incident.
It is next argued that the court erred in permitting the defendant to be questioned as to alleged gifts he gave to the complaining witness in another case. A police officer had testified that he had first arrested defendant on a misdemeanor warrant charging possession of lewd pictures. Defendant then had tried to explain this incident by testifying that he had been driving a Mrs. Fisher and her children in his car, at which time the children had opened a cigar box that was in the back of the car. Both the children and Mrs. Fisher had seen nude pictures which he kept in the box. Defendant stated that he had cut the pictures out of a nudist magazine. At any rate, Mrs. Fisher was quite upset and notified the police. It does not appear what happened as to this charge. After this evidence came in, the prosecution was permitted to question defendant as to a bottle of vodka given by him to Mr. Fisher, a bottle of cologne given to Mrs. Fisher, and candy given to the Fisher children. This was done apparently on the theory that such gifts constituted an attempted bribe. Conceding that, under the general rule pertaining to evidence of other crimes, this may have been error, it does not appear that, considering the convincing evidence of defendant's guilt, he suffered any prejudice. This evidence was trivial, and could not possibly have been prejudicial.
Defendant's next contention is that the cross-examination of Sandra, which cross-examination brought out other offenses committed by defendant, far exceeded that necessary for impeachment purposes. Count 4 which involved statutory rape of Sandra, had been dismissed on the prosecution's motion prior to the time she was called as a defense witness. Her testimony on direct examination contradicted some of the testimony of Barbara. On cross-examination, Sandra testified, over objection, that she had accompanied defendant to a nudist camp, that defendant took photographs of her there in the nude, and that she had spent the night with defendant and one Marilyn in a hotel in Long Beach. She further testified that Marilyn had taken nude photographs of her in Long Beach. Photographs of Sandra and Marilyn in the nude were admitted into evidence. Sandra at first denied, but later admitted, that she had, prior to the trial and the preliminary hearing, made statements to the police to the effect that she had had sexual intercourse with the defendant on various occasions.
Defendant argues that since evidence tending to show the witness' bias had already been introduced (i. e., that defendant lived in Sandra's grandmother's home, that he bought Sandra gifts, and that she looked on him as a grandfather), it was an abuse of discretion to permit the additional cross- examination above noted. No abuse of discretion appears. There was no jury present. We may assume that the trial judge received and considered the evidence solely for impeachment purposes.
There appears to be no prejudicial error, if any error exists at all, in the rebuttal testimony permitted. This testimony was in response to testimony elicited by the prosecution on cross-examination of defendant and Sandra. It will be remembered that Sandra had testified that Marilyn had taken photographs of her in the nude in Long Beach. Defendant, on direct, made a complete denial of improper conduct with Barbara, Patty, Sandra, or with anyone else. He denied having taken nude pictures of Sandra in Long Beach, and denied knowing anything about it. On cross-examination defendant again denied that he had taken the photographs of Sandra, stating, 'I never took any of those pictures' and 'I don't know anything about them.' Defendant was asked whether he had taken Marilyn to a hotel in Long Beach. Defendant's objection to this question was overruled, the trial court saying, 'I suppose that can be received on the theory of other offenses of a similar nature to show a tendency.' The Attorney General concedes that this language of the trial court is 'unfortunate,' but it is argued that the error is not prejudicial. We agree. The...
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