Majority
Opinion
Petition for writ of prohibition to prevent trial of five counts in a ten-count indictment.
Questions Presented
1. Failure of petitioner to challenge in time the denial of his section 995 Penal Code motion.
2. Are counts 1, 3, 7, 8, and 10 properly joined?
3. Validity of denial of motion for separate trials of the counts.
A ten-count indictment was filed against petitioner, a licensed physician. His motion under section 995 Penal Code to set aside the indictment was granted as to five counts and denied as to the other five counts.[2] The latter will be discussed hereinafter.
In addition to his motion under section 995, petitioner demurred to all counts and also moved for separate trials of each. The demurrer was overruled and the motion for separation denied.
Petitioner seeks review of the adverse actions of the trial court. The sole grounds of the petition are the same as stated in petitioner’s demurrer, namely: (1) alleged lack of jurisdiction of the trial court over counts 7 and 8, misdemeanors, and (2) that the indictment joins offenses not connected in their commission.
1. Review of the section 995 motion comes too late.
That motion was denied on November 19, 1969. The petition herein was filed December 10.
Penal Code section 999a requires that a petition for writ of prohibition seeking review of a denial of a 995 motion be filed within 15 days of the denial. A petition for prohibition not filed within the 15 days must be denied. (Bernstein v. Superior Court (1955) 45 Cal.2d 774 [ 291 P.2d 29 ].)
2. Joinder of counts.
The five counts left in the indictment are:
Count 1. Violation of section 11163 Health and Safety Code (illegally prescribing a narcotic to Ralph Patton on February 4, 1969), a felony;
Count 3. Violation of section 288a Penal Code (attempted oral copulation upon the person of one Michael on August 3, 1969), a felony;
Count 7. Violation of section 272 Penal Code (contributing to the delinquency of a minor, Timothy, by permitting him to consume alcoholic beverages at a party in petitioner’s home on May 9, 1969), a misdemeanor;
Count 8. Violation of section 272 Penal Code (contributing to the delinquency of a minor, Dominic, in touching, rubbing and fondling said
1 The counts set aside were count 2, violation of section 11164 Health and Safety Code (prescribing narcotics to a narcotic addict); counts 4, 5, 6 and 9, violations of section 272 of the Penal Code (contributing to the delinquency of minors).
minor’s private parts at petitioner’s home on June 1 and June 10, 1969), a misdemeanor;
Count 10. Violation of section 288a Penal Code (oral copulation upon the person of a minor, Raymond, at petitioner’s home on July 14, 1969), a felony.
In pertinent part, Penal Code section 954 provides: “An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.”
Section 954 does not distinguish felonies and misdemeanors in its provisions for joinder. It therefore authorizes the joinder of misdemeanor counts and felony counts in a prosecution in the superior court if the misdemeanors and felonies either were “connected together in their commission” or are “of the same class of crimes or offenses.” (Kellett v. Superior Court (1966) 63 Cal.2d 822 , 826 [ 48 Cal.Rptr. 366 , 409 P.2d 206 ]; see also, In re McKinney (1968) 70 Cal.2d 8 , 13 [ 73 Cal.Rptr. 580 , 447 P.2d 972 ]; People v. Winchell (1967) 248 Cal.App.2d 580 , 589-590 [ 56 Cal.Rptr. 782 ].)
For purposes of joinder, offenses are deemed to have been “connected together in their commission” where there was a common element of substantial importance in their commission, even though the offenses charged did not relate to the same transaction and were committed at different times and places and against different victims. (People v. Polk (1964) 61 Cal.2d 217 , 230 [ 37 Cal.Rptr. 753 , 390 P.2d 641 ]; People v. Spates (1959) 53 Cal.2d 33 , 36 [ 346 P.2d 5 ].) Similarly, within the meaning of section 954, offenses are “of the same class” if they possess common characteristics or attributes. (People v. Kemp (1961) 55 Cal.2d 458 , 476 [ 11 Cal.Rptr. 361 , 359 P.2d 913 ]; People v. Ross (1960) 178 Cal.App.2d 801 , 805 [ 3 Cal.Rptr. 170 ].)
Upon demurrer, the indictment must be construed in light of the transcript of testimony on which it is founded. (See, People v. Crosby (1962) 58 Cal.2d 713 , 722-723 [ 25 Cal.Rptr. 847 , 375 P.2d 839 ]; cf. People v. Burch (1961) 196 Cal.App.2d 754 , 763-764 [ 17 Cal.Rptr. 102 ].) In the present case, common elements of substantial importance underlying counts 3, 7, 8, and 10 were the alleged circumstances that petitioner’s home was used by him to commit the crimes charged in
Count 3—On August 3, 1969, petitioner invited Michael, a juvenile, to petitioner’s Stockton home for a nightcap. No one else was present in the home. When they arrived there, Michael declined the drink and lay down because he felt ifl from drinking elsewhere. Petitioner masturbated himself, fondled Michael’s genitals, and attempted to orally copulate the boy’s penis.
Count 7—Petitioner supplied alcoholic beverages at a party for high school students in his Stockton home on May 9, 1969. Timothy, age 17, attended the party and consumed such beverages there. Petitioner never made any sexual overtures toward Timothy, but on an unspecified occasion told him he could stay at petitioner’s home any time the boy wanted to.
Count 8—The “first part of June 1969,” Dominic, age 17, went to petitioner’s Stockton home with a friend. After the friend left, while purporting to give Dominic a physical examination so the boy would have an excuse for school absences, petitioner put his arms around Dominic, fondled the youth’s penis, and attempted to masturbate the boy. Later that June, after Dominic had fallen asleep in petitioner’s home while there were other persons present, the boy awoke to find that the others had gone and that petitioner had the boy’s pants down and was “playing” with him. The offer or use of alcoholic beverages was apparently not involved in Dominic’s case.
Count 10—On July 14, 1969, petitioner invited Raymond, a juvenile, to petitioner’s Stockton home for a drink after having bought other drinks for him at a bar. No one else was present in the home. When they arrived there, petitioner served Raymond the drink and told the boy he wanted to go to bed with him. Under the influence of the alcohol, Raymond consented. Petitioner orally copulated the youth’s penis. Petitioner rubbed his own penis against the boy’s leg. Then petitioner masturbated himself.
It is apparent from the foregoing summary that deviate sexual conduct was a third common element of substantial importance underlying counts 3, 8, and 10.
3. Denial of separate trials.
As the counts (other than count 1) were properly joined in the indictment, the court did not abuse its discretion in denying defendant’s motion for severance of the trial of each count. “[I]t is in the discretion of the trial court to order the different counts in an information [or indictment] to be tried separately and in the absence of a showing of an abuse of such discretion the trial court’s ruling [denying separate trials] will not be reversed on appeal.” (People v. Leete (1955) 130 Cal.App.2d 725 , 727 [ 279 P.2d 769 ]; see also, People v. Chapman (1959) 52 Cal.2d 95 , 97 [ 338 P.2d 428 ].)
Let a peremptory writ of mandate issue requiring the trial court to vacate that portion of its order of December 3, 1969, whereby it overruled the demurrer to count 1, and to enter an order sustaining the demurrer to that count. In all other respects, the petition is denied and our previous stay order vacated.
Pierce, P. J., and Regan, J., concurred.
Footnotes
- * Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
Cases cited
- Bernstein v. Superior Court 45 Cal.2d 774 p. 721
- Kellett v. Superior Court 63 Cal.2d 822 at 826 p. 722
- In re McKinney 70 Cal.2d 8 at 13 p. 722
- People v. Winchell 248 Cal.App.2d 580 at 589-590 p. 722
- People v. Polk 61 Cal.2d 217 at 230 p. 722
- People v. Spates 53 Cal.2d 33 at 36 p. 722
- People v. Kemp 55 Cal.2d 458 at 476 p. 722
- People v. Ross 178 Cal.App.2d 801 at 805 p. 722
- People v. Crosby 58 Cal.2d 713 at 722-723 p. 722
- People v. Burch 196 Cal.App.2d 754 at 763-764 p. 722
- People v. MacEwing 216 Cal.App.2d 33 at 50 p. 723
- People v. Cramer 67 Cal.2d 126 at 130 p. 723
- People v. Leete 130 Cal.App.2d 725 at 727 p. 724
- People v. Chapman 52 Cal.2d 95 at 97 p. 724