As Modified on Denial of Rehearing March 21, 1966.

For Opinion on Hearing, see 57 Cal.Rptr. 363, 424 P.2d 947. Harry Ellman, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gerald H. Genard, Deputy Atty. Gen., for plaintiff and respondent.

WHELAN, Justice.

Defendant has appealed after being granted probation following his conviction by a The act denounced by section 288a was performed upon the body of David, defendant's stepson, a boy of eight years, during the mother's absence from the home. Defendant solicited reciprocal action from the child, which was refused, although the boy was prevailed upon to masturbate defendant.

The foregoing took place between January 1 and 27, 1964, while defendant, a member of the United States Navy, was at home on leave. During that period the boy complained to his mother that his penis was sore; he did not relate what had happened until October 16, 1964, because he had been promised a certain kind of watch by defendant. When defendant brought home a watch to the boy that was not the kind promised, the boy considered he was released from his promise to defendant.

The boy told his story to his mother while defendant was away for a week. After defendant's return his parents were at the house. Upon their departure and some 10 days after the boy had told his story, the mother repeated it to defendant, who said nothing and 'seemed shocked.' In testifying defendant said that he was 'speechless': that he had neither admitted nor denied the truth of David's story. The next morning defendant left the house and did not return except to pick up his belongings.

Two days later defendant called his wife by telephone and in the conversation said, 'I believe Davie. This must have happened, but I know I do have blackouts and do not remember it.' In testifying defendant did not deny having made the statement; said that he didn't remember whether he said it or not. The boy's mother reported the incident to the police by telephone; after several days a statement was taken from her by a police officer, Morse. She told Morse, among other things, that her attorney had advised her either to file for divorce or file a complaint (criminal); she had filed an action for divorce on November 2; she would go ahead with the divorce and not sign a criminal complaint; she wanted her son to forget about it.

On December 10 some unidentified person at the Naval Station, defendant's post of duty, told defendant to report to the security office where he was interviewed by Officer Morse at 8:45 a. m. Morse told defendant 'that he didn't have to make any statement to me regarding the case that I was inquiring about, that anything that he said could be used against him in court, and that he was entitled to an attorney now and at any time that I talked to him.' He told defendant of what the boy accused him; defendant denied the act, then stated that he drank considerably and often blacked out and it was possible that he might have done it but he could not recall.

After Morse had left, defendant, at 9:30, was interviewed by Kerr, a civilian detective employed by the Navy to investigate crimes, who advised defendant of his rights under Article 31 of the Uniform Code of Military Justice; that he had the right to remain silent; that he could not be compelled to answer any questions that might incriminate him, that anything he said orally or in writing could be used against him in court martial or otherwise.

Kerr told defendant also that he was suspected of committing sodomy, told him what sodomy was and had defendant read and sign a printed form on which defendant's signature appears twice.

One signature appears under the following language:

'ARTICLE 31, MANUAL FOR COURTS MARTIAL UNITED STATES 1951:

"Compulsory self-incrimination prohibited:

"(a) No person subject to this code shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

"(b) No person subject to this code shall interrogate, or request any statement "* * *

"(E) I understand that I have the right to remain silent [followed by handwritten initials 'R.E.K.' in ink].

'I HAVE READ THE ABOVE AND HEREBY CERTIFY THAT IT IS UNDERSTOOD BY ME."

The second signature appears under the following language:

'I hereby acknowledge that in accordance with the provisions of Article 31 of the uniform Code of Military Justice, I have been advised this date that I am accused or suspected of having committed the offense(s) of: Sodomy

'I also understand that I am not required to make a statement regarding the offense(s) of which I am accused or suspected; and that any statement made by me may be used against me in a trial by court-martial.'

Kerr then questioned defendant, made handwritten notes of defendant's statements, dictated from his notes into a recording machine within defendant's hearing, had the dictation typewritten, had the defendant read what had been typed and asked defendant to sign it, which defendant did. The statement substantially corroborated the boy's testimony as to the commission of the offenses charged.

A mechanical sound reproduction was attempted, without defendant's knowledge, of a part of the interview, but the reproduction was so poor that it could not be used as evidence. Defendant suspected that the conversation was being recorded.

The typewritten statement signed by defendant was received in evidence over his objection. Previously, a hearing was had out of the presence of the jury to determine the admissibility of the confession. In that hearing Kerr testified that he did not inform defendant that he had a right to be represented by counsel; that defendant did not request the use of the telephone to call an attorney, did request to and did use the telephone at least once; Kerr did not get the impression from defendant's side of the telephone conversation that defendant was talking to an attorney; that defendant was not under arrest and was free to leave at any time.

Defendant, in the voir dire proceeding, testified that he made a request of Kerr that he be permitted to call his lawyer and was told it was not necessary; when second and third requests were made, Kerr said 'no' to each; that he said to Kerr 'I was due in court at 2:00 o'clock that afternoon, I would like to call my attorney and let him know that I wouldn't be there. * * * I wanted to let my attorney know where I was. * * * To the fact that Mr. Kerr had me'; that he wished also to consult an attorney with respect to Kerr's interrogation; that he used the telephone only once, to cancel an 11:00 o'clock dental appointment; that Kerr told him he was not in custody, but would not let him go although requested several times to do so; in answer to the question 'You were aware then that you were entitled to an attorney, if you wanted to talk to one about this event?' answered 'Yes, sir. And when I asked Mr. Kerr, he wouldn't let me.'

In passing upon the question of the admissibility of the confession, the court expressly accepted Kerr's testimony that no request for an attorney had been made or refused.

The statement admitted into evidence included admissions of prior acts of oral copulation with a male adult in 1940, with defendant's first wife, and with the mother of the boy.

As a witness on his own behalf defendant testified substantially as in the voir dire proceedings concerning his interview with Kerr whose office defendant left at twenty DEFENDANT'S CONTENTIONS

1. The receipt into evidence of the confession was a violation of defendant's constitutional rights because he was not informed of his right to counsel and was denied that right.

2. The reception of the written admissions of defendant to occurrences in 1940, 1943 and 1952 was error because those occurrences were too remote and the evidence concerning them was prejudicial and degrading to defendant; that the admissions concerning them should have been eliminated from the confession. Incidental to this point, defendant contends that proof of prior acts cannot be based upon a confession alone but requires independent testimony as well.

3. The court erred in admitting the testimony of the defendant's wife, regarding her conversation with him relating to the alleged offenses.

The third contention is based upon the theory that Penal Code, section 1322, destroys the privilege only when the child offended against is the natural child of both husband and wife.

DISCUSSION

The issue as to the admissibility of any part of the confession involves two separate problems: Whether there was a denial of the right to counsel so as to bring the factual situation close to that in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and, if there was no such denial, whether there was a clear, understanding and intelligent waiver of the right to counsel and to remain silent.

The evidence as to whether defendant had requested and been refused the opportunity to get in touch with his attorney was in conflict. The trial judge resolved that conflict against defendant's claim. Where the evidence is conflicting as to the circumstances under which a confession has been made, that determination by the judge who presided at the trial will not be disturbed on appeal in the absence of a showing of a clear abuse of discretion. There was no such showing here. (People v. Huber, 225 Cal.App.2d 536, 543-544, 37 Cal.Rptr. 512; see also People v. Doty, 31 Cal.2d 696, 700, 192 P.2d 454.)

It is not necessary to determine the question whether defendant knew of his right to counsel by resort to inferences, as would have been necessary in People v. Buchanan, 63 A.C. 942, 48 Cal.Rptr. 733, 409 P.2d 957. Nor was there, as in Buchanan, any admitted refusals to permit the defendant to obtain counsel; nor an admitted request for counsel, as in People v. Stockman, 63 A.C. 519, 526, 47 Cal.Rptr. 365, 407 P.2d 277, and People v. Modesto, 62 Cal.2d 436, 42 Cal.Rptr. 417, 398 P.2d 753. Nor is it necessary to make the determination upon the basis of what Morse told the defendant. Defendant testified that he knew at the time that he had a right to counsel. While in the same answer he testified that when he asked Kerr he was refused, the court was free to believe a part of the answer and disbelieve the rest of it. (7 Wigmore, 3rd ed. § 2100, p. 496.) It is clear that defendant knew of his right to counsel. The fact that Kerr did not inform him of such right is not determinative as to whether People v. Mathis,

Here, defendant had been advised of his right to counsel by Morse some 45 minutes before the interview with Kerr; because of defendant's admitted knowledge of his right to counsel we deem it unnecessary to decide whether the advice given by Morse would have been sufficient alone to form a basis for an intelligent waiver of the right to counsel. Morse's warning may nevertheless have a bearing. While defendant did not confess unequivocally to Morse with full knowledge of his right to counsel, he made damaging admissions to Morse; thus he waived the right in making his statement to Morse; he does not contend otherwise. We conclude that he as freely, clearly and intelligently waived the right to counsel in making his statement to Kerr and in signing it after it had been reduced to writing.

It might be argued that in signing an acknowledgment that he had been advised of his right to remain silent and that anything he might say could be used against him in a court martial, defendant may have believed that his statement could be used only in a court material; that with that single possible consequence of making a statement presented to him, he did not intelligently waive his right to remain silent. If the claim were valid, defendant might have made it in the voir dire proceeding, but did not; nor does he urge it on appeal. We conclude that, having understandingly waived his right to counsel he likewise understandingly waived his right to remain silent.

Because of the conclusion that we have set forth above, we have not passed upon plaintiff's contention that defendant was not in custody when he made his confession.

CONFESSION OF OTHER ACTS

Defendant's written, signed confession contained admissions of other acts defined as criminal by California law. Defendant contends that the defendant's admission of an act defined as a crime is insufficient without other evidence to prove a crime. It is certainly insufficient to convict one of the crime. However, distinctions must be made. Confessions or admissions alone are insufficient as proof of a crime in a penalty hearing in a case of capital murder. (People v. Hines, 61 Cal.2d 164, 174, 37 Cal.Rptr. 622, 390 P.2d 398; People v. Hamilton, 60 Cal.2d 105, 129, 32 Cal.Rptr. 4, 383 P.2d 412.) But where it is proper to prove other acts of a defendant, as distinguished from crimes, even though the acts be criminal, proof may be made by the defendant's admissions alone. (People v. Zatzke, 33 Cal.2d 480, 202 P.2d 1009; People v. Misquez, 152 Cal.App.2d 471, 479, 313 P.2d 206; Turner v. Underwood, K. B. D. [1948], 1 All E.R. 859; 2 Wigmore 3rd ed. supp. § 360.)

If the admissions of others acts meet the test of relevancy, they are not to be excluded because unsupported by other evidence.

Evidence of other acts is admissible in a criminal trial only for the limited purpose of showing knowledge, intent, design (2 Wigmore 3rd ed. § 300, p. 192), motive or identity (2 Wigmore 3rd ed. § 306, p. 206).

The general test of relevancy is whether the evidence tends logically, naturally and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense. If it does, then People v. Dabb,

Relevant evidence that meets the standard set forth above is admissible in the trial of crimes involving lewdness or sex (People v. Malloy, 199 Cal.App.2d 219, 231-232, 18 Cal.Rptr. 545; People v. Zabel, 95 Cal.App.2d 486, 213 P.2d 60; People v. Troutman, 187 Cal. 313, 201 P. 928). The decision in People v. Baskett, 237 A.C.A. 837, 47 Cal.Rptr. 274, is not to the contrary.

The intent with which the body of a child under age 14 has been touched is an essential element in the proof of a violation of section 288, Penal Code. Proof of a specific intent is not required to convict of a violation of section 288a.

The admissibility of evidence of other acts to show intent as a part of the People's case in chief, in a prosecution under Penal Code, section 288, was approved in People v. Malloy, supra, 199 Cal.App.2d 219, 233, 18 Cal.Rptr. 545; and is questioned in People v. Baskett, supra, 237 A.C.A. 837, 47 Cal.Rptr. 274. In Malloy, defendant, when he later testified, claimed an innocent intent.

The admissions came in as a part of defendant's written confessions. In confessing the acts charged against him, defendant used language that might indicate that he claimed to have only been seeking to find out if the boy had ever beem molested sexually or had other sexual experience. If the admissions of prior acts had value as showing intent, it would not be unfair that they should go into evidence for that purpose at the same time as the confession which, in the manner in which it was made, might have suggested an intent other than of arousing, appealing to, or gratifying the lust or passions or sexual desires of defendant or the child. (See People v. Honaker, 205 Cal.App.2d 243, 244, 22 Cal.Rptr. 829.) That is not to say that because the admissions of prior acts were a part of the writing that contained the confession, they were admissible under the principle of compulsory completeness. Wigmore writes, concerning that principle, that on the prosecution's part there is usually an unnecessary scrupulosity on this point. (7 Wigmore 3rd ed. § 2100, p. 498, f. n. 9.) The operation of that principle has recently been restricted by our Supreme Court when a statement of a defendant affects the rights of a co-defendant in a joint trial and the co-defendant has been denied a separate trial. (People v. Aranda, 63 A.C. 542, 555, 47 Cal.Rptr. 353, 407 P.2d 265.) Where prejudicial and irrelevant portions of an oral statement of a defendant relating to other to other crimes were severable, it has been held error to admit such severable parts, although not necessarily reversible error. (People v. Green, 96 Cal.App.2d 283, 215 P.2d 127.)

No error was committed in allowing evidence of other sexual misconduct in during the People's case in chief if that evidence tended fairly to throw light on the intent with which defendant performed the actions testified to by the boy.

Here, one of the prior acts occurred in 1940, the others thereafter. They furnish evidence that defendant obtained gratification of his passions through oral copulation. To that extent they bear upon the intent with which defendant had contact with the body of the child. It is contended by defendant that because children were not involved in the other acts, evidence of those acts is irrelevant. The evidence was not received to show a pattern, habit or history of criminality, nor to show a propensity of the defendant to commit a certain type of crime, but to show a practice, whether frequent or infrequent, of obtaining sexual gratification from the type Whether another act as to which proof is offered is too remote in time to have evidentiary value is generally a matter within the discretion of the trial court. (People v. Peete, supra, 28 Cal.2d 306, 169 P.2d 924.) If only the single act in 1940 had been admitted, its probative weight might be so insignificant as not to justify its reception into evidence. However, the more recent acts admitted by defendant indicate that proof of the act committed in 1940 was not without weight as bearing upon the question of defendant's intent.

That the admissions of those prior acts, if believed by the jury, would have an effect harmful to defendant cannot be doubted. Yet, in weighing such damaging effect, we must consider that defendant's confession to the gist of at least one of the crimes charged in the indictment was even more damaging. There was not any testimony, nor were there any circumstances, in the confession itself that tended to negate its truth. The evidence as to the other acts of the defendant did not come from the lips of another witness, except to the extent that the writing was identified by Kerr, but from defendant's signed statement. The situation is different from that in Baskett where the obnoxious testimony came from witnesses other than the defendant and tended to cast doubt upon the defendant's denials of guilt. Unless there were error in receiving any part of the confession into evidence, any error in the reception of the admissions by defendant of other acts does not require reversal. There is no reasonable probability that a result more favorable to defendant would have resulted had the admissions as to other acts been rejected by the court.

Defendant's theory that in Penal Code, section 1322, the words 'by the other' qualify the words 'child or children of one' rather than qualifying the words 'cases of criminal violence' is disapproved. The testimony of the wife as to defendant's conversations with and notes to her was not subject to the privilege, but was exempted therefrom under the provisions of section 1322.

The judgment is affirmed.

GERALD BROWN, P. J., and COUGHLIN, J., concur.