People v. Turner

• Decision Date: 30 May 1985
• Docket Number: Cr. 12781
• Citation: 171 Cal.App.3d 116,214 Cal.Rptr. 572
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Lee TURNER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 572

214 Cal.Rptr. 572

171 Cal.App.3d 116

The PEOPLE, Plaintiff and Respondent, v. David Lee TURNER, Defendant and Appellant.

Cr. 12781.

Court of Appeal, Third District, California.

May 30, 1985.

Review Denied Aug. 14, 1985.

Berman & Glenn and Howard J. Berman, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

Defendant made an unsuccessful motion to dismiss the information on the grounds of double prosecution in violation of Penal Code section 654 as construed by Kellett v. Superior Court (1966) 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206. He then pled guilty, obtained a certificate of probable cause and appealed solely on the ground that the trial court erroneously denied the motion. The central question is whether the Kellett issue is cognizable on appeal after a guilty plea. We hold that it is. On the merits, however, we find no violation of the proscription against multiple prosecutions and therefore affirm the judgment.

Under a plea bargain struck after his motion to dismiss was denied, defendant pled guilty to six counts of lewd and lascivious conduct upon a child under the age of 14 (Pen.Code, § 288, subd. (a)) ¹ and two counts of penetration of the genital or anal openings of another person by a foreign object ( § 289, subd. (a)). Seven other counts were dismissed. Defendant was sentenced to 60 consecutive years in state prison. This appeal followed.

FACTUAL AND PROCEDURAL BACKGROUND

In the afternoon of May 4, 1982, defendant twice became enraged at Tammy, his eight year old daughter, once because she was unable to complete a math problem and again when she failed to take out the garbage promptly. In the course of that violent afternoon, defendant grabbed Tammy's hair and threw her around the kitchen. Then he hurled a chair at her. Finally, he pulled down her pants and started stinging her with cattle prod, an instrument she described as the "hot shot." Defendant stung her three to six times on her behind. The prod left small, dot-like marks on Tammy and caused her to become dizzy and cry. These events gave rise to a felony prosecution in May 1982 for infliction of cruel and inhumane corporal punishment on a child. ( § 273d) Defendant pled guilty to that crime on July 7, 1982, and the court granted him probation with the condition he serve 11 months in county jail and pay a fine and penalty assessment.

On other various occasions from about January 1, 1982, to and including May 4, 1982, defendant inserted the end of a sewing machine brush in Tammy's vagina and anus, penetrated her vaginal and anal openings with his penis, orally copulated her, and forced her to orally copulate him. Defendant threatened Tammy that if she did not participate in these acts, he would hang her upside down from a punching bag. On two occasions defendant carried out that threat and hung Tammy upside down from the punching bag and stung her with the cattle prod. Defendant also forced Tammy to kneel in a corner clothed in panties on a screen surface he had devised and he then stung her with the cattle prod. These sexual offenses lead to a second prosecution commenced in August 1982. In the course of this second prosecution it was discovered that defendant had committed some of sex offenses against Tammy on May 4, 1982, the same day he inflicted unlawful corporal punishment on her and for which he had earlier been prosecuted.

Defendant's motion to dismiss was premised upon the assertion that "the physical and sexual abuse are part of the same course of conduct and the prosecution was aware of the sexual abuse allegations early in the prior proceedings, ..." Consequently, so the argument goes, the failure to join the sexual offenses with that earlier prosecution for corporal punishment resulted in a bar to a subsequent prosecution for the related sexual offenses. In support of his motion, defendant's former counsel in the earlier proceeding filed a declaration in this case asserting that "[o]n or about May 24, 1982, the same day the preliminary examination was conducted in [the prior] case, Deputy District Attorney Perkinson informed me that there may be allegations of sexual fondling in connection with the case and that there had been an indication of that in a past offense. Perkinson added that he would inform me if sexually oriented charges would be filed." The record shows that before defendant pled guilty to the corporal punishment charge, a probation officer contacted Deputy District Attorney John Perkinson, who was prosecuting that case, and expressed concern that defendant might be sexually abusing Tammy. The probation officer's suspicion arose from the fact that while defendant was on probation for a 1977 battery of Tammy there had been a report of a molestation incident. In his counter declaration, the prosecutor declared that the probation officer "informed me in this conversation that the Defendant had been suspected of sexually abusing his daughter some time in the past (my impression was several years in the past), and, as a result, speculated that similar conduct might be present currently. [The probation officer's] speculation at this time was based solely on this prior investigation as there were no current reports (statements from victim, etc.) to establish a basis for possible recent sexual abuse.... [U]p to Defendant's plea on July 7, 1982, nothing further was developed nor communicated that would have led me to initiate further criminal charges against the Defendant." In denying the motion, the court stated that, notwithstanding the communicated concerns of the probation officer, there was no evidence the prosecuting attorney was either aware of, or should have been aware of, any sexual crimes at the time of the first plea.

DISCUSSION

I

On appeal defendant renews his contention that the trial court committed prejudicial error in denying his motion to dismiss on grounds of impermissible multiple prosecution in violation of section 654. The People contend defendant's argument is not cognizable on appeal because the claimed error was waived by his plea of guilty. We disagree.

Section 654 contains two separate provisions. ² The first precludes multiple punishment where an act or omission is made punishable by different penal provisions. The second part of section 654 provides that "an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other." This second aspect of section 654 is a safeguard against harassment and is not necessarily related to the punishment to be imposed. Consequently, "double prosecution may be precluded even when double punishment is permissible." (Neal v. State of California (1960) 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 357 P.2d 839.)

In Kellett, the Supreme Court considered the policy factors underlying the statute and concluded that in order to avoid needless harassment of the defendant and the waste of public funds section 654 should be construed to prohibit successive prosecutions where the first prosecution results in acquittal or conviction and sentence, and the prosecution was or should have been aware of more than one offense in which the same act or course of conduct played a significant part. (63 Cal.2d at pp. 826-827, 48 Cal.Rptr. 366, 409 P.2d 206.) Consequently, "[f]ailure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Id., at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) As the high court later recounted in People v. Lohbauer (1981) 29 Cal.3d 364, 373, 173 Cal.Rptr. 453, 627 P.2d 183, "[u]nless joinder is prohibited or severance permitted for good cause ( § 954), all offenses of which the prosecution is or should be aware which arise out of the same act or course of conduct must be prosecuted in a single proceeding." The usual method of raising an issue under section 654 has been by motion to dismiss the second proceeding. (Kellett, 63 Cal.2d at p. 824, 48 Cal.Rptr. 366, 409 P.2d 206; People v. Flint (1975) 51 Cal.App.3d 333, 335, 124 Cal.Rptr. 269.) ³

Section 1237.5 provides the procedure for the perfection of an appeal after a plea of guilty. ⁴ Under its terms, as a condition precedent to filing an appeal following a guilty plea, the defendant must file a written statement under oath or penalty of perjury showing "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." The trial court must then "certify any arguably meritorious appeal" by issuing a certificate of probable cause for appeal. (People v. Holland (1978) 23 Cal.3d 77, 84, 151 Cal.Rptr 625, 588 P.2d 765.) ⁵ The section, however, is procedural rather than substantive; it does not operate to expand the issues which may be raised on appeal after a guilty plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872.) Section 1237.5 essentially provides a screening mechanism through which appeals which raise no cognizable issues may be precluded. (People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4, 92 Cal.Rptr. 692, 480 P.2d 308.) Accordingly, even if the defendant obtains a certificate of probable cause he will be precluded from raising issues which were waived by his guilty plea. (People v. DeVaughn, supra, 18 Cal.3d at p. 896, 135 Cal.Rptr. 786, 558 P.2d 872.) ⁶ As we noted in People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903, "[t]he fact that defendant obtained ... a certificate of probable cause does not erase [a] waiver and somehow resuscitate a dead issue.... Consequently, '[o]btaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.' " (Id., at p. 227, fn. 7, 185 Cal.Rptr. 903, citations omitted.) The question...