People v. Fritts

Opinion

A jury found appellant guilty of the following charges: Count I, committing a lewd and lascivious act upon M, his stepdaughter, a child under fourteen, between 1 May 1973 and 1 May 1974 (Pen. Code, § 288); counts II to IV, unlawful sexual intercourse with M. a female under 18, on 13, 14, and 15 September 1975 (Pen. Code, § 261.5); count V, committing a lewd and lascivious act upon S, his daughter, a child under 14, on 16 September 1975 (Pen. Code, § 288). The court instituted MDSO proceedings, found appellant to be a mentally disordered sex offender who could benefit from treatment in a state hospital, and committed him for placement in Patton State Hospital (Welf. & Inst. Code, § 6316). Appellant appeals the order of commitment, contending: (1) evidence of uncharged sexual misconduct with appellant’s daughter C by a prior marriage and with another young girl

Since appellant “wisely does not challenge the sufficiency of the evidence” (see People v. Kazee (1975) 47 Cal.App.3d 593 , 594 [ 121 Cal.Rptr. 221 ]), we state the facts with appropriate brevity. Prior to the filing of charges appellant lived with his wife Janet, her daughter M by a former marriage, and two children of their own, one of whom was their daughter S. The family owned and operated a retail television sales store. M testified that during the period from I May 1973 to 1 May 1974, while she was 13 years old, she frequently worked in the store after school. On numerous occasions appellant, after closing the store, would take M into the back room, place a blanket on the floor, and have sexual intercourse with her. M could not recall the exact dates of any of the occurrences. She further testified, as charged in counts II through IV of the information, that on 13, 14, and 15 September 1975 appellant caused her to have sexual intercourse with him in their home at times when they were alone in the house. On September 16 Janet left her husband. Appellant picked up the children at school and brought them home, threatening to take them to Virginia if they tried to follow their mother. That night M escaped through a bedroom window and went to a neighbor, who assisted her in joining her mother. Later that same night, according to S, then 10 years old, appellant took S into his bed and attempted intercourse with her, but desisted when she cried and asked him to stop it. Thereafter Janet filed for divorce. On September 22 Janet took M to a doctor to determine if she were pregnant, because the girl had missed three periods, and in the doctor’s office M for the first time told her mother that appellant had molested her. Later S came to the house where Janet and M were staying and after some questioning by Janet admitted similar molestation.

Appellant’s daughter C by his first wife, seventeen years old at time of trial, testified to repeated acts of sexual molestation by appellant beginning when she was five or six years old. She also testified to suspicious indications of the relationship between appellant and M, such as finding M in appellant’s bed. She further testified that one morning appellant got into bed with her when she was sleeping in the same bed with M, and after she resisted appellant’s advances he “proceeded on to” M. C turned her back on what they were doing, but she heard M crying.

Another witness, Patricia, testified that when she was seventeen she was a temporary resident of appellant’s household. One night appellant fondled her in bed but left when she threatened to call Janet.

Both M and S testified that appellant began making sexual advances to them at early ages (five to seven years old for M; seven or eight years for S), and in the case of M regular relations began at about age thirteen and continued nearly every other day until the breakup of the household in September 1975. M submitted and did not tell anyone because she was afraid of appellant’s possible violence toward her; she had seen him strike her mother twice, once with a broom and once with his fist. S did not tell anyone about sexual advances because appellant told her not to. Daughter C had a “hunch” what was happening between appellant and M but could not bring herself to tell anyone.

Appellant denied ever having molested any of the alleged victims. He admitted striking his wife, as M had testified.

In our view C’s testimony was admissible in evidence. Unquestionably, the part of her testimony that directly corroborated M’s testimony about sexual molestation was admissible. Equally admissible was the part of her testimony that described the molestation of herself and M on the same occasion, for it would be impossible to testify about one without referring to the other. Arguable is her testimony about molestation by appellant at times and in places when M was not present. We think such testimony admissible on two grounds:

(1) Her testimony tended to show a continuing plan or design on the part of the accused to use minor female members of his own household, his minor daughters and minor stepdaughter, to satisfy his sexual gratifications and wants. (See People v. Cramer (1967) 67 Cal.2d 126 [ 60 Cal.Rptr. 230 , 429 P.2d 582 ]; People v. Ing (1967) 65 Cal.2d 603 [ 55 Cal.Rptr. 902 , 422 P.2d 590 ]; People v. Covert (1967) 249 Cal.App.2d 81 , 87-88 [ 57 Cal.Rptr. 220 ]; People v. Kazee (1975) 47 Cal.App.3d 593 [ 121 Cal.Rptr. 221 ].) In many respects the facts are analogous to those in Ing, where the molestation involved a specific class of persons (patients) in a specified location (doctor’s office). At bench, the class of persons involved minor female members of appellant’s household and the places of occurrence were his residence and place of business.

Appellant complains of restrictions on his cross-examination of Janet and M. He wished to ask Janet whether she had said she would use any means to prevent appellant’s getting custody of the children; whether she had offered to drop charges if appellant would waive all custody rights and relinquish all community property to her; whether Janet had lost custody of a daughter in a previous divorce and had said that she would never let it happen again; and whether Janet had locked him out of the store during divorce proceedings and refused to obey a court order to let him in. The foregoing evidence was sought to show motive for fabrication of the charges. The court permitted appellant’s counsel to ask Janet about the loss of custody of one of her daughters and appellant was allowed to testify that Janet locked him out and had promised not to press charges if he signed eveiything over to her.- The court refused, however, to permit any detailed inquiry into the conflicts of the divorce and property settlement, stating that the parties were not trying the divorce action. The familiar rule applicable here is that the trial court possesses broad discretion to keep cross-examination of a complaining witness in a sex offense case within reasonable bounds. (E.g. People v. Pacheco (1963) 220 Cal.App.2d 320 , 324 [ 33 Cal.Rptr. 735 ].) That discretion was not abused here, for evidence of the bitterness of the divorce and property settlement was far afield from the issue of appellant’s guilt on the criminal charges.

Additionally, appellant wished to question both Janet and M as to whether M had been having sexual relations with a boyfriend named Pete, whether she had been found to be pregnant at her September 22 visit to the doctor, and if so what the outcome of the pregnancy had been. The court correctly refused to allow questioning about M’s sexual life or pregnancy. The attempt to impeach M by fishing for evidence of unchaste behavior was improper. (See, e.g., People v. Pacheco, supra, 220 Cal.App.2d at p. 323.) Such evidence possesses no direct probative value in relation to the charges at bench and is demeaning to the witness. (People v. Brown (1968) 262 Cal.App.2d 378 , 383 [ 68 Cal.Rptr. 657 ]; People v. Stratton (1904) 141 Cal. 604 , 607 [ 75 P. 166 ].) In a rape case

The judgment (order of commitment) is affirmed.

Compton, J., and Beach, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 28, 1977.