People v. Willoughby
| Decision Date | 21 February 1985 |
| Docket Number | Cr. F002889 |
| Citation | 164 Cal.App.3d 1054,210 Cal.Rptr. 880 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. George F. WILLOUGHBY, Defendant and Appellant. |
Appellant was convicted following a jury trial of three sexual offenses involving Kathleen, a five-year-old neighbor child. Specifically, appellant was convicted in count one of a violation of Penal Code section 286, subdivision (c), sodomy with a child less than 14 years of age and more than 10 years younger than the defendant; count two, a violation of Penal Code section 288, subdivision (b), committing a lewd and lascivious act on a child less than 14 years of age by use of force or threat of great bodily harm; and count three, a violation of Penal Code section 261, subdivision (2), rape by force or fear. All three offenses were alleged to have been committed between April 13 and April 23, 1982. Appellant was sentenced to the aggravated term of eight years on each count, to run consecutive and full term to each other, for a total of twenty-four years.
This was appellant's second trial involving sexual offenses against Kathleen. Originally, appellant was charged and tried on 48 different counts occurring between February 1 and April 23, 1982. The information alleged repeated acts of forcible rape, sodomy, lewd and lascivious conduct with a child and other lesser sexual offenses. The jury was unable to agree on a verdict in the first trial except that it did find appellant not guilty of various counts not relevant to this appeal and not guilty of battery, a lesser included offense of the rape charges. A mistrial was declared as to those charges on which the jury could not reach a verdict.
Before retrial, appellant entered a "once in jeopardy" plea pursuant to Penal Code section 1016, subdivision 5. After an amended information was filed alleging only the three counts on which appellant now stands convicted, appellant withdrew his double jeopardy plea on advice of counsel.
For the reasons that follow we conclude the judgment must be reversed because the trial judge prejudicially erred in admitting into evidence over objection and as part of the prosecution's case-in-chief evidence of an uncharged sex offense allegedly committed three years earlier by appellant against another victim. For the guidance of the trial court on retrial, we express our views on the admissibility of evidence of appellant's prior offense as it relates to his identity as the perpetrator of the crime. We also speak on the double jeopardy question.
During the early months of 1982, Barbara worked a 2:30 p.m. to 12:30 a.m. shift. A close neighbor, appellant's wife Phyllis, provided child care for Barbara's two young children, five-year-old Kathleen and Kathleen's younger brother Austin.
Kathleen and Austin went to the Willoughby house several days a week from February through much of April. Kathleen testified that almost every time she was in the house, appellant, a 65-year-old father of five, called her into his bedroom and committed various sexual acts upon her including vaginal intercourse, sodomy and oral copulation. She claimed appellant locked the bedroom door if she tried to leave; she said she cooperated because appellant made her and did not scream because she was frightened. Kathleen also claimed appellant showed her lewd photographs of naked men and women and paid her a dime on one occasion to orally copulate him. He warned her not to tell her mother of these things.
In April, after an incident which hurt her very badly, Kathleen told her mother what appellant had done to her. Barbara notified the Kern County Sheriff's Department, and appellant was arrested. Appellant waived his Miranda rights and denied ever having touched Kathleen except to spank her.
An emergency room physician at the Kern County Medical Center examined Kathleen and discovered a jagged tear running from her anus to vagina. Later, Dr. Bruce Woodling, an expert in the detection of sexual assault and molestation in children, examined Kathleen and found positive evidence that Kathleen had been repeatedly sodomized and had been subjected to repeated vaginal intercourse.
At trial, twelve-year old Donna was permitted to testify that three years earlier, when she was nine years old, appellant and his wife "babysat" her one night at their house. Donna claimed appellant awakened her in the middle of the night and asked her if she had ever been "fucked." The next day, according to Donna, appellant, wearing a bathrobe, called her into his bedroom and asked her if she had a boyfriend, if she had been kissed, if she had started her period, if anyone had been in her "hole" and if she wore a bra. Without answering his questions, Donna claimed she left the room but not before appellant squeezed her buttocks and told her they needed to talk some more.
Appellant testified in his own defense. He admitted having entered the bedroom where his daughter and Donna were sleeping. He claimed he saw Donna sleeping partially clad in a provocative position and awakened her to tell her to get under the covers. He admitted having a longer conversation with Donna the following day about problems he suspected she was having with her family, but denied questioning her about her sexual knowledge.
Appellant testified that as an elder in the Mormon Church, he considered child molesting as morally reprehensible as murder. While categorically denying any sexual activity with Kathleen, he admitted he did not particularly like her and described her as a truculent, overbearing, foul-mouthed little girl.
A number of character witnesses affirmed their belief in appellant's honesty, integrity and dedication to the church and its principles. They found nothing in appellant's character to suggest he had the propensity to molest children.
Appellant contends the trial court prejudicially erred in permitting Donna to testify that three years before the charged crime with Kathleen appellant made sexual overtures to her and grabbed her buttocks in a lewd and lascivious manner when she was an overnight guest in his home. According to appellant, the only purpose of this evidence was to show he had a bad character i.e., a predisposition to sexually molest young girls. As such, he argues, the evidence is barred by the explicit provisions of Evidence Code section 1101, subdivision (a): "Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion." (Emphasis added.)
Respondent counters by arguing that Donna's testimony was properly admitted pursuant to the exception provided by Evidence Code section 1101, subdivision (b): "Nothing in this section prohibits the admission of evidence that a person committed a crime, ... or other act when relevant to prove some fact (such as motive, ... intent, ... plan, ... [or] identity, ... other than his disposition to commit such acts."
It is well established that evidence of other crimes or prior bad acts is inadmissible solely to prove the accused had the propensity or disposition to commit the crime charged. (Evid.Code, § 1101, subd. (a); People v. Kelley (1967) 66 Cal.2d 232, 238, 57 Cal.Rptr. 363, 424 P.2d 947; People v. Haston (1968) 69 Cal.2d 233, 70 Cal.Rptr. 419, 444 P.2d 91; People v. Guerrero (1976) 16 Cal.3d 719, 724, 129 Cal.Rptr. 166, 548 P.2d 366; People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883.) The purpose of the exclusionary rule is " 'to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, ...' " (People v. Haston, supra, 69 Cal.2d 233, 244, 70 Cal.Rptr. 419, 444 P.2d 91; see also People v. Schader (1969) 71 Cal.2d 761 at pp. 772-773, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Thompson, supra, 27 Cal.3d 303, 317, 165 Cal.Rptr. 289, 611 P.2d 883.) In short, the evidence is excluded because of the danger of convicting an innocent person of the charged crime based on his or her prior bad record.
It is equally well settled that evidence may be admitted, even though it embraces evidence of the commission of another offense, if it logically tends to prove a material element in the People's case (Evid.Code, § 1101, subd. (b); People v. Guerrero, supra, 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366.) In ascertaining whether evidence of other offenses has a tendency to prove the material fact, the court must first determine whether or not the uncharged offense serves " ' "logically, naturally, and by reasonable inference" ' " to establish that fact. (People v. Thompson, supra, 27 Cal.3d 303, 316, 165 Cal.Rptr. 289, 611 P.2d 883.) The court " 'must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.' " (People v. Thompson, supra, 27 Cal.3d 303, 316, 165 Cal.Rptr. 289, 611 P.2d...
To continue reading
Request your trial
-
People v. Miranda
...(Evid.Code, § 1101, subd. (a); People v. Alcala (1984) 36 Cal.3d 604, 631, 205 Cal.Rptr. 775, 685 P.2d 1126; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1062, 210 Cal.Rptr. 880.) However, the evidence may be admitted when it is relevant to prove another issue in the case such as opport......
-
People v. Pitts
...to corroborate the testimony of the green house victims. Gindes also relied on this court's opinion in People v. Willoughby (1985) 164 Cal.App.3d 1054, 210 Cal.Rptr. 880, and argued that admitting the evidence would save time under Evidence Code section 352 47 since it would prevent the cal......
-
People v. Von Villas
...Identification was the key issue, and the statements of the witnesses did not refer to that issue. (People v. Willoughby (1985) 164 Cal.App.3d 1054, 1063-1064, 210 Cal.Rptr. 880.) In light of the substantial evidence amassed by the prosecution against Von Villas in proving the robbery and r......
-
People v. Jeff
...inadmissible to prove the victim was raped. This court has discussed the child molest syndrome in two cases. In People v. Willoughby (1985) 164 Cal.App.3d 1054, 210 Cal.Rptr. 880, the court in one sentence concluded testimony of a sexual trauma expert was inadmissible on the subject of the ......