father convict ed of molesting daughter testified he was merely rubbing vaporizing cream on her chest for treatment of cold; dissent arguing testimony of other daughters that they, too, had been molested by their father was admissible to illuminate defendant's true intent and absence of mistake
How later courts described this case
- father convict ed of molesting daughter testified he was merely rubbing vaporizing cream on her chest for treatment of cold; dissent arguing testimony of other daughters that they, too, had been molested by their father was admissible to illuminate defendant's true intent and absence of mistake
- recognizing the principal of admissibility but holding the proffered evidence inadmissible because of its remoteness
- child sexual assault 10 to 18 years before, inadmissible
- “evidence of a common design or plan would bear either on the issue of the defendant’s identity as the perpetrator of the charged offense, or the defendant’s intent to commit that offense” [emphasis in original]
Written by the judges who cited it.
Later courts went against this
Overruled implicitly by People v. Tassell, 36 Cal. 3d 77 (1984)
Tassell effectively overruled Thomas
The opinion
CLARK, J., Dissenting.
Daughter C’s testimony concerning defendant’s sex offenses against her when she was a child is clearly admissible to prove (1) common design or plan and (2) intent.
Common Design Or Plan
The majority conclude that defendant’s crimes against C were “simply too remote in time to be relevant to the present charges. The fact that defendant had molested one daughter a decade or more ago would not establish the fact that he had a continuing common plan or scheme to molest all of his daughters.” (Ante, p. 466.)
Had the prior misconduct consisted of a single incident, one might agree. But, according to C, defendant’s sex offenses against her continued for eight years, with intercourse occurring “quite often” for the last two years, and ceased only when she and her mother left defendant when C was 14. That defendant last molested C six years 1 before he began molesting M does not necessarily undercut the inference that he had a “continuing common plan or scheme to molest all of his daughters.” To the contrary, the interval is perfectly consistent with such design, given the nature of defendant’s deviancy and his opportunities to satisfy it, for defendant is apparently not sexually attracted to his daughters until they *475 become eight years old and none living with him during the interval in question was that old. Under the circumstances, the “remoteness” of the evidence of defendant’s crimes against C goes to its weight, not to its admissibility.
Intent
In People v. Kelley (1967) 66 Cal.2d 232, 241 [ 57 Cal.Rptr. 363 , 424 P.2d 947 ], Justice Peters writing for the majority cited with approval cases holding that “when the defendant in testifying in his own behalf acknowledges the physical touching of the child but asserts his innocent intent, thereby definitely placing in issue the necessary element of intent, the prosecution may then introduce. evidence that defendant has committed similar. offenses upon persons other than the prosecuting witness in order to rebut the testimony of the defendant on a point material to the establishment of his guilt of the crime charged. (People v. Westek [1948] 31 Cal.2d 469, 480-481 [ 190 P.2d 9 ]; see also, People v. Honaker [1962] 205 Cal.App.2d 243, 245 [ 22 Cal.Rptr. 829 ].)”
Daughter M testified that defendant initiated one of the charged episodes of molestation by awakening her to say he was going to put Vicks on her chest, but that instead of applying the medication, defendant fondled her breasts and vagina. Testifying in his own behalf, defendant admitted rubbing M’s chest, but claimed he did so in order to apply the medication, and denied touching her vagina. By “acknowledging] the physical touching of the child but asserting] his innocent intent” defendant placed his intent in issue, enabling the People to elicit C’s testimony in rebuttal. That defendant molested C for eight years is clearly probative of his intent in touching M’s breasts. The “remoteness” of the evidence of prior sex crimes goes, again, to its weight, not to its admissibility.
The judgment should be affirmed.
On Februaiy 15, 1978, the opinion was modified to read as printed above..
The majority’s reference to defendant’s molestation of C as having occurred a decade earlier is apparently based on the fact that the charged offenses with M and R occurred 10 years after the last uncharged offenses with C. However, although the charged offenses occurred when M was 12, she testified that defendant first began molesting her when she was 8,. which would have been just 6 years after he last molested C.