Opinion
Rehearing Denied June 13, 1973.
Hearing Granted July 12, 1973.
Opinion on pages 463-471 omitted.
HEARING GRANTED
[108 Cal.Rptr. 116]Appellate Defenders, Inc., by Harold F. Tyvoll, San Diego, under appointment by Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., A. Wells Petersen and Michael D. Wellington, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
WHELAN, Acting Presiding Justice.
Raymond Joseph Walsh (defendant) has appealed from an order made March 31, 1972, placing him on probation for three years following a jury's verdict finding him guilty of a violation of Penal Code section 314, subd. 1 (indecent exposure) and his admission of a charged prior violation of the same code section.
Although defendant was granted probation, it followed the imposition of sentence [108 Cal.Rptr. 117] to state prison and the suspension of execution of that sentence.
In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, decided during the pendency of this appeal, has stated the recidivist portion of Penal Code section 314 to be void.
Penal Code section 314, so far as applicable, provides:
'Every person who willfully and lewdly, either
'1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . .
'. . . is guilty of a misdemeanor.
'Upon the second and each subsequent conviction under subdivision 1 of this section, . . . every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison for not less that one year.'
It is argued, however, that the quoted statement is broader than the holding of In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, which should be interpreted as striking only the words 'for not less than one year' from the last paragraph with the result that the term prescribed by law would be that fixed by Penal Code section 18. That section provides in part:
'Except in cases where a different punishment is prescribed by any law of this State, every offense declared to be a felony is punishable by imprisonment in any of the state prisons, not exceeding five years . . ..'
A different punishment is prescribed for a second violation of Penal Code section 314, even though it may not now be imposed.
Penal Code section 18, therefore, does not supply the term of imprisonment if the second violation remains punishable as a felony with imprisonment.
As an alternative, the People suggest the solution reached in People v. Sama, 189 Cal. 153, 207 P. 893.
There the court was confronted with the problem arising from the effect of Penal Code section 1168 upon a sentence for the term prescribed by law for attempted robbery for which the maximum term would be one-half of the defendant's life. In holding the indeterminate sentence law did not apply, the court reversed and remanded with instructions to the superior court to render a judgment sentencing the appellant to imprisonment in the state prison for such a term of years as in its opinion would be a just and punishment.
We view In re Lynch as setting aside the last paragraph of Penal Code section 314 for reconsideration by the Legislature which might determine that a second or subsequent violation should remain a felony and fix an appropriate term of imprisonment therefor, or make such other disposition as it deemed proper.
It follows that the crime of which defendant stands convicted is a misdemeanor under paragraph 1 of section 314, and the judgment imposing sentence to state prison is set aside for the purpose of resentencing as a misdemeanor.
The offense charged occurred on July 27, 1970.
The testimony as to the occurrence need not be recited. The testimony of the two female witnesses to whom the indecent exposure was made was sufficient to establish the commission of the offense and that defendant had committed it.
Defendant admitted he had encountered the two girls at the time and place and in the automobile as they had testified, but denied the act.
Defendant claims error in the admission, over his objection, of certain evidence that he had committed a similar act on other occasions.
Some of that evidence was in the form of statements made to polygraph examiner who testified as to the statements.
[108 Cal.Rptr. 118]The other evidence was by way of stipulation that defendant on two prior occasions in the same community had exposed himself. That stipulation was made to avoid the testimony of witnesses to the prior acts, after such testimony had been heard out of the presence of the jury and the court had ruled it admissible to impeach the credibility of defendant as a witness, who on cross-examination had made a statement interpreted as meaning he had never engaged in such conduct.
Concerning the polygraph examination, a stipulation was signed by defendant and his counsel before the examination that the report of that examination and '[a]ny statements made by the defendant during or after the examination of the examiner can and may be used against him in court.'
The stipulation was one in which defendant, so far as the polygraph examination and interview were concerned, waived his rights under the Fifth and Sixth Amendments to the Federal Constitution.
If a decision in this case turned upon the question whether a trial court is relieved of the responsibility of passing upon the relevancy and materiality of offered evidence in the form of statements of a party, given in an interview as the result of a stipulation made beforehand that statements made during the interview might be admitted in evidence, we should say no.
It is obvious that many irrelevant, immaterial matters might be touched upon the nature of which could not be known when the stipulation was made, and the admissibility of which the court would have the duty to pass upon if such admissibility should be questioned.
The polygraph examiner testified to his opinion defendant's negative responses to two questions as to whether defendant had exposed himself at the time in question were false. The examiner testified that after he had advised defendant he had failed the test defendant stated it was possible that he did expose himself.
Over objection, the examiner was permitted to testify to testify further as follows:
'He stated in the past when things like this have occurred to him, that he tried to shut them out of his mind. He stated that he had had prior troubles in this same area, and usually the reasons were, for his actions were, when he did have these prior troubles, were that he had been emotionally upset, and that on this particular day he was emotionally upset.'
The stipulation contemplated the examiner's testimony concerning his opinion as to the result of the test, and reasonably could extend to his statement to defendant that the latter had failed the test and to defendant's response to that statement.
There is, therefore, some relevancy in defendant's further statement which tended to explain why defendant on the date of the charged offense might have exposed himself: he was emotionally upset on that occasion, and when such things had occurred in the past it was because he was emotionally upset.
No objection was made to the questions asked by the district attorney that elicited the answers the contradiction of which was the purpose of the impeaching testimony.
Although in the expressed opinion of the trial judge such impeachment was on a matter collateral to the main issue, he ruled it admissible.
Did the situation arise for application of the rule of People v. Westek, 31 Cal.2d 469, 476, 190 P.2d 9? Where a defendant, apparently actuated by a desire to place himself in an especially favorable light before the jury, injects into the case in the course of his direct examination the whole subject matter of his past conduct of the kind involved in the charged offense, the prosecution may offset the effect of such gratuitous testimony by evidence of other acts similar to that for which the defendant is on trial.
Some of the other cases in which a defendant on direct examination made sweeping statements which permitted the application [108 Cal.Rptr. 119] of the rule are People v. Hoffman, 199 Cal. 155, 161, 248 P. 504; People v. Whipple, 192 Cal.App.2d 179, 185-186, 13 Cal.Rptr. 378; People v. Downs, 114 Cal.App.2d 758, 762, 251 P.2d 369, cert. den., 348 U.S. 944, 75 S.Ct. 366, 99 L.Ed. 739.
In People v. Waggoner, 195 Cal.App.2d 385, 388, 15 Cal.Rptr. 687, although the defendant did not testify himself, he did attempt to exhibit a blameless character through the testimony of witnesses. Under such circumstances the rule enunciated in People v. Westek, supra, 31 Cal.2d 469, 190 P.2d 9, was held controlling.
In the case at bench, the situation of People v. Westek, supra, in its simplicity, is not present. The answers given by defendant to counter which the questioned evidence was presented were on cross-examination.
Reversal is not always required by the admission of evidence for the purpose of impeaching the defendant on a collateral matter as to which the district attorney should not have been permitted to impeach. (People v. Watson, 46 Cal.2d 818, 299 P.2d 243; cert. den., 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55.)
It is not in every instance that the erroneous admission of evidence of another crime compels reversal. In People v. Beverly, 233 Cal.App.2d 702, 723, 43 Cal.Rptr. 743, cert. den., 384 U.S. 1014, 86 S.Ct. 1937, 16 L.Ed.2d 1035, error in admitting evidence that a defendant in a murder trial was a bigamist was held not to require reversal.
The receipt of properly admissible evidence for the wrong reason can be upheld:
'It is immaterial that the court's ruling, at the time it was made, rested on an insufficient basis, since the prosecuting attorney did not explain, and the court did not inquire into, the nature of the similarity of the prior offense and the precise issue for which it was offered. It is also immaterial that the court erred in permitting the prosecutor to explain the purpose of the evidence within the hearing of the jury before ruling on its admissibility. 'The evidence having been properly received against [the defendant], the ground of the court's ruling is immaterial.' [Citation.]' (People v. Schader, 71 Cal.2d 761, 777, 80 Cal.Rptr. 1, 11, 457 P.2d 841, 851.)
It is arguable that if People v. Cramer, 67 Cal.2d 126, 60 Cal.Rptr. 230, 429 P.2d 582, were invoked, the trial court might have received evidence of the prior acts as part of the People's case in chief.
In People v. Cramer, supra, the court stated, at page 130, 60 Cal.Rptr. at page 233, 429 P.2d at page 585:
'[A]s the matter is sometimes stated, the other offenses offered to prove pattern, scheme, or plan 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.'
In its extensive discussion in People v. Schader, supra, 71 Cal.2d 761, 774, 80 Cal.Rptr. 1, 9, 457 P.2d 841, 849, the court declared:
'[M]odus operandi, peculiar behavior, victim, plan, scheme, design, time, and geographical proximity . . . may be used in different cases to prove one of any number of issues: identity, commission of an act, intent, knowledge, motive, premeditation, etc. (1 Wigmore, Evidence (3d ed. 1940) §§ 215-217, pp. 710-719.)'
The court in Schader also held, at page 775, 80 Cal.Rptr. at page 9, 457 P.2d at page 849:
'Before permitting the jury to hear evidence of other offenses the court must ascertain that the evidence (a) 'tends logically, naturally and by reasonable inference' to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People's case; and (c) is not merely cumulative with respect to other evidence which the People may use to [108 Cal.Rptr. 120] prove the same issue. . . . In order to assess materiality, the court must consider not merely the elements of the offense, but also the defendant's testimonial admissions.'
In People v. Thoma, 27 Cal.App.3d 436, 440, 103 Cal.Rptr. 746, 749, the court held admissible evidence of other acts of indecent exposure because they showed 'the same modus operandi pattern, scheme and common design and the same 'peculiar or characteristic behavior pattern," thus bringing the case within the rule of People v. Cramer, supra, 67 Cal.2d 126, 60 Cal.Rptr. 230, 429 P.2d 582.
In the present case the jury was instructed as to the specific intent proof of which is necessary to a finding of guilt of the crime involved. Three different instructions on the question were given.
It is true that in argument outside the presence of the jury defense counsel stated no issue was made as to the existence of the specific intent. However, no stipulation or admission to that effect was presented to the jury.
There remained as an issue then the existence of the specific intent. Proof of modus operandi, involving geographical proximity and a peculiar behavior pattern, was relevant to that issue. (People v. Schader, supra, 71 Cal.2d 761, 774, 80 Cal.Rptr. 1, 457 P.2d 841.)
There was uncontradicted evidence in the case that defendant had admitted he might have exposed himself on the occasion in question, which he explained by a further statement, likewise uncontradicted, that when such things had occurred in the past it was when he was emotionally upset and that he had been emotionally upset on the day in question.
Because of that evidence, and from an examination of the entire cause, including the evidence, it is our opinion that the error complained of has not resulted in a miscarriage of justice. (Cal.Const., art. 6, § 13; People v. Watson, supra, 46 Cal.2d 818, 837-838, 299 P.2d 243.)
Defendant's other contentions are without merit.
There was no evidence which made it necessary or proper for the court to instruct on the effect of unconsciousness as a defense. Defendant testified he did not black out, and that if he exposed himself he would have been aware of it.
The claimed misconduct of the district attorney in his cross-examination of defendant was not urged in the court below. As noted, there was no objection to the questions that gave rise to the claim the prior acts might be proved as impeachment. It is evident from the trial court's ruling that the district attorney's theory was an arguable one. The claim of misconduct is not sustained.
The claim that the court's receipt of an admission of a prior felony conviction requires the safeguards imposed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 cert. den., 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72, upon the taking of a plea of guilty, was rejected in People v. Wilson, 20 Cal.App.3d 507, 511, 97 Cal.Rptr. 774, and People v. Franco, 4 Cal.App.3d 535, 540-541, 84 Cal.Rptr. 513. The contrary holding in Wright v. Craven, (9th Cir. 1972), 461 F.2d 1109, is not binding upon this court. In the instant case, however, the admission was as to a prior misdemeanor conviction, the importance in view of our holding as to the effect of In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.
There was no error in the giving of certain instructions argued to be erroneous.
The judgment is reversed solely for the purpose of pronouncement of judgment as for a misdemeanor; in all other respects the judgment is affirmed.
AULT and COLOGNE, JJ., concur.