People v. Thomas

• Decision Date: 16 January 1978
• Docket Number: Cr. 19836
• Citation: 20 Cal.3d 457,573 P.2d 433,143 Cal.Rptr. 215
• Court: California Supreme Court
• Parties: , 573 P.2d 433 The PEOPLE, Plaintiff and Respondent, v. Charlie THOMAS, Defendant and Appellant.

Page 215

143 Cal.Rptr. 215

20 Cal.3d 457, 573 P.2d 433

The PEOPLE, Plaintiff and Respondent, v. Charlie THOMAS, Defendant and Appellant.

Cr. 19836.

Supreme Court of California.

Jan. 16, 1978.

AS Modified Feb. 15, 1978.

Bruce Robert Kay, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Richard A. Curtis and Joseph Levine, Deputy State Public Defenders, as amici curiae, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Nancy A. Saggese, Deputy Attys. Gen., for plaintiff and respondent.

RICHARDSON, Justice.

Defendant Charlie Thomas appeals from an order granting probation (Pen.Code, § 1237, subd. 1) following convictions of three counts of committing lewd and lascivious acts on the body of a child under the age of 14 years (id., § 288). The appeal presents questions regarding the admissibility in a sex offense case of prior similar sex offenses by the defendant. We will conclude that, under the circumstances in this case, it was prejudicial error to admit the evidence at issue and accordingly will reverse the judgment.

Defendant was charged by information with three counts of violating Penal Code section 288, which makes it unlawful "willfully and lewdly (to) commit any lewd or lascivious act . . . upon or with the body, . . . of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, . . ." The first two counts charged defendant with committing lewd acts on his stepdaughter, M, then twelve years old. The third count charged defendant with committing a similar offense on his natural daughter, R, then nine years old. Following a trial by jury, defendant was found guilty on all three counts and was placed on probation under various conditions.

Both M and R testified extensively regarding defendant's improper conduct, including acts of sexual intercourse with both girls. We find it unnecessary to recite the details of their testimony, for defendant does not challenge the sufficiency of the evidence to support the convictions. R admitted at trial that she had previously told defense counsel that her preliminary hearing testimony against defendant was false and that it had been suggested to her by defendant's other natural daughter, C. R also testified, however, that on this prior occasion she had lied to defense counsel because she did not want her father to go to jail. Defendant at trial denied any improper acts with M or R, although admitting that he had on one occasion, without any lewd intent, applied medication to M's bare chest.

Over defendant's objection, the People were permitted to introduce C's testimony regarding defendant's illicit acts upon her when she was a child. According to C (who was 24 when she testified), defendant first molested her when she was 6 years old; defendant frequently fondled her sexually, and when she was 12 he had sexual intercourse with her; between the ages of 12 and 14, sexual intercourse with C occurred "quite often." Defendant contends that introduction of C's testimony was improper and constituted prejudicial error. We agree.

As a general rule, evidence that the defendant committed other crimes is inadmissible if offered solely to prove a criminal disposition on defendant's part. (People v. Cramer (1967) 67 Cal.2d 126, 129, 60 Cal.Rptr. 230, 429 P.2d 582; People v. Kelley (1967) 66 Cal.2d 232, 238, 57 Cal.Rptr. 363, 424 P.2d 947; Evid.Code, § 1101.) As we explained in Cramer and Kelley, the purposes of the foregoing exclusionary rule are threefold: (1) to avoid placing the accused in a position in which he must defend against uncharged offenses, (2) to guard against the probability that evidence of such uncharged acts would prejudice defendant in the minds of the jurors, and (3) to promote judicial efficiency by restricting proof of extraneous crimes. (Cramer, at p. 129, 60 Cal.Rptr. 230, 429 P.2d 582; Kelley, 66 Cal.2d at pp. 238-239, 57 Cal.Rptr. 363, 424 P.2d 947.) In brief, although defendant's prior criminal acts may demonstrate his bad character and his propensity or disposition to commit the crime charged, ". . . a defendant is not to be convicted because the prosecution can prove, on his prior (or subsequent) record, that he is a bad man." (People v. Adamson (1964) 225 Cal.App.2d 74, 79, 36 Cal.Rptr. 894, 898 (sex crimes, as such, do not constitute an exception to the foregoing principle); see Witkin, Cal.Evidence (2d ed. 1966) § 340, p. 299.)

There do exist, however, several exceptions to the general rule which are applicable in those instances in which the evidence of other crimes is relevant to prove some fact at issue other than the mere general disposition to commit such acts. As expressed in Kelley, "It is settled that evidence of other crimes is ordinarily admissible where it tends to show guilty knowledge, motive, intent, or presence of a common design or plan." (66 Cal.2d at p. 239, 57 Cal.Rptr. at p. 370, 424 P.2d at p. 954; see People v. Cramer, supra, 67 Cal.2d at p. 129, 60 Cal.Rptr. at p. 233, 429 P.2d at p. 585 (exception where there is a "common design, plan, or modus operandi "); People v. Ing (1967) 65 Cal.2d 603, 55 Cal.Rptr. 902, 422 P.2d 590 ("common scheme or plan to commit rape"); Evid.Code, § 1101, subd. (b) ("motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").)

1. Common Design or Plan

The "common design or plan" exception frequently arises in sex offense cases (such as Kelley, Cramer and Ing ), although it applies generally in all criminal cases (see, e. g., People v. Sam (1969) 71 Cal.2d 194, 203-205, 77 Cal.Rptr. 804, 454 P.2d 700; People v. Peete (1946) 28 Cal.2d 306, 317, 169 P.2d 924). This exception has two distinct aspects or applications: (1) It may refer to the defendant's modus operandi or distinctive, characteristic method of committing crimes. (Cramer, supra, 67 Cal.2d at p. 130, 60 Cal.Rptr. 230, 429 P.2d 582; Sam, supra, 71 Cal.2d at pp. 204-205, 77 Cal.Rptr. 804, 454 P.2d 700.) (2) It also may refer to " 'a larger continuing plan, scheme, or conspiracy, of which the present crime on trial is a part' . . . ." (Sam, at p. 205, 77 Cal.Rptr. at p. 810, 454 P.2d at p. 706, quoting from McCormick on Evidence (1954), p. 328; see also People v. Covert (1967) 249 Cal.App.2d 81, 86-87, 57 Cal.Rptr. 220 (recognizing the dual aspect of the exception).)

Ordinarily, evidence of a common design or plan would bear either on the issue of the defendant's identity as the perpetrator of the charged offense, or the defendant's intent to commit that offense. (See People v. Hunt (1977) 72 Cal.App.3d 190, 201-204, 139 Cal.Rptr. 675; but see Kelley, 66 Cal.2d at p. 243, fn. 5, 57 Cal.Rptr. 363, 424 P.2d 947, disapproving as "too restrictive" an earlier case limiting the common design or plan exception to cases in which identity is at issue.) In view of the fact, however, that the "plan" exception is separately listed in Evidence Code section 1101, subdivision (b), in addition to "identity" and "intent," there may be additional applications of the exception.

Our decisions in Cramer and Kelley are helpful in pinpointing the rationale underlying the common design or plan exception. Both cases recognized that although alleged sex offenses committed with persons other than the prosecuting witness are often unreliable and difficult to prove, nevertheless such evidence is admissible to show a common design or plan where the prior offenses (1) are not too remote in time, (2) are similar to the offense charged, and (3) are committed upon persons similar to the prosecuting witness. (Kelley, at p. 243, 57 Cal.Rptr. 363, 424 P.2d 947; Cramer, 67 Cal.2d at p. 129, 60 Cal.Rptr. 230, 429 P.2d 582.)

In Cramer we cited with approval earlier decisions holding that the test of admissibility under the common design or plan exception is "whether there is some clear connection between that (prior) offense and the one charged so that it may be logically inferred that if defendant is guilty of one he must be guilty of the other. Or as the matter is sometimes stated, the other offenses . . . are sufficiently similar and possess a sufficiently high degree of common features with the act charged where they warrant the inference that if the defendant committed the other acts he committed the act charged. (Citations.)" (67 Cal.2d at pp. 129-130, 60 Cal.Rptr. at p. 233, 429 P.2d at p. 585.) Cramer upheld the admission of evidence of prior recent sex offenses against young boys under circumstances similar in many respects to the offense charged. (See also People v. Ing, supra, 65 Cal.2d 603, 55 Cal.Rptr. 902, 422 P.2d 590 (prior rapes disclosing similar modus operandi).)

On the other hand, Kelley involved similar offenses alleged to have been committed upon the accused's eight-year-old stepson, and we held inadmissible certain evidence of prior remote sex offenses committed with consenting adults. The prior offenses at issue were not admissible to prove a common design or plan because they were committed upon persons "quite dissimilar" to the prosecuting witness, involved distinctly different conduct, and were "too remote in time to have any reasonable bearing on the act charged, . . ." (Id., 66 Cal.2d at p. 244, 57 Cal.Rptr. at p. 957, 424 P.2d at p. 373.)

The evidence at issue herein does not qualify for admission under the standards expressed by us in Cramer and Kelley. C's testimony involved a course of conduct which occurred during a period between 10 and 18 years prior to the offenses with which defendant was charged. Although the prior offenses bore one important similarity with the present offenses, namely, molestation of, and intercourse with, defendan...