People v. Creighton

JEFFERSON (Bernard), J.

I concur in the majority’s reversal of the judgment of conviction but I do not agree with all of the reasoning set forth in the opinion. Thus, the majority states that Joan’s testimony with respect to facts related to her by her sister, Catherine, a prosecution witness, regarding defendant’s having sexual relations with Catherine, can be considered prejudicial only if Catherine’s testimony was improperly admitted in evidence.

This is an erroneous statement—that such rank hearsay ceases to be prejudicial error when it is made by a witness who has testified at the trial. The majority does not discuss the question of the basis for admissibility of such hearsay testimony.

The only possible exception to the hearsay rule that might be applicable to Catherine’s hearsay statements to Joan would be that of the prior-consistent-statement exception to the hearsay rule. The record, *328 however, does not support a theory that Catherine’s hearsay statements to Joan to qualify for admissibility under the prior-consistent-statement exception to the hearsay rule set forth in Evidence Code sections 1236 and 791. (See Jefferson, Cal. Evidence Benchbook (1972) § 10.2, pp. 143-145.) I would predicate reversal of defendant’s conviction on the error of the trial judge in admitting Joan’s hearsay testimony as well as on the error stated by the majority.

- I also disagree with the majority’s opinion that the admission in evidence of Catherine’s testimony that defendant had sexual relations with her—which constitutes evidence of uncharged offenses against defendant—was not improper. I consider that the admission into evidence of Catherine’s testimony constitutes prejudicial error. I would include this error as one of the grounds for reversal of defendant’s conviction.

Although discussing at some length the cases of People v. Kelley (1967) 66 Cal.2d 232 [ 57 Cal.Rptr. 363 , 424 P.2d 947 ], People v. Cramer (1967) 67 Cal.2d 126 [ 60 Cal.Rptr. 230 , 429 P.2d 582 ], People v. Covert (1967) 249 Cal.App.2d 81 [ 57 Cal.Rptr. 220 ], and People v. Stanley (1967) 67 Cal.2d 812 [ 63 Cal.Rptr. 825 , 433 P.2d 913 ], the majority concludes that no error was committed in the admission of the other-crimes evidence against defendant because of the decision of People v. Kazee (1975) 47 Cal.App.3d 593 [ 121 Cal.Rptr. 221 ],

The majority takes the position that it is bound to follow Kazee although some doubt is expressed as to whether Kazee is in harmony with the principles set forth in Kelley and Cramer .

I know of no rule of law which requires us to be bound by a prior Court of Appeal decision, irrespective of our belief as to the correctness of that decision. The Courts of Appeal are bound by decisions of the California Supreme Court but are not required to follow prior decisions of the Courts of Appeal, regardless of which particular district or division rendered such prior decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ]. “But it seems to be the clear policy of this state that its intermediate reviewing courts record their disagreement with existing law .... This policy has received its most recent expression by rule 976, California Rules of Court. That rule provides for publication of our opinions which ‘criticize existing law,’ even though they do not otherwise meet the rule’s criteria for publication.” (Craig v. Superior Court (1976) 54 Cal.App.3d 416, 424-425 [ 126 Cal.Rptr. 565 ] (cone, opn.).)

*329 The charge against defendant in the instant case is that he, committed sexual offenses against the minor victim, Loren. Defendant raises no issue as to the existence of the elements of the crimes charged and contends only that he was not the perpetrator. Under these circumstances, the testimony of Catherine, Loren’s older sister, that defendant committed similar acts with her, is relevant to prove that defendant committed the crimes charged against Loren solely on the theory that such evidence establishes defendant’s disposition, behavior pattern or character trait to commit the charged offenses against Loren and, therefore, should be held to be inadmissible by reason of Evidence Code section 1101, subdivision (a). (See People v. Thornton (1974) 11 Cal.3d 738 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ].)

In Kazee , the court held admissible, in an incest case, evidence that the defendant had had sexual relations with an older stepsister of the victim, his daughter. The Kazee court conceded that evidence that the defendant committed the uncharged offense against the victim’s stepsister was not admissible under any theory of modus operand! or on the issue of identity, since no such issue was involved.

The Kazee court concluded that the only justifiable theory of admissibility was that the stepdaughter’s testimony of the defendant’s sexual relations with her became admissible as corroboration of the testimony of the daughter-victim and complaining witness. Thus, the theory of admissibility was that such evidence buttressed the credibility of the prosecuting witness against the inevitable defense challenge.

But Kazee does not offer any explanation of how the corroboration theory of admissibility gets around the prohibition of Evidence Code section 1101, subdivision (a), that character trait evidence, offered to prove that a defendant acted in accordance with his character trait and committed the offense in question, is inadmissible.

In my view, the Kazee decision is untenable and indefensible and should not be followed. Even though the theory of Kazee is that the uncharged incest evidence becomes admissible to corroborate the testimony of the victim, nevertheless, such evidence of the defendant’s commission of a sex offense against the victim’s stepsister proves only that defendant has a character trait or disposition to have sexual relations with his daughters, which leads to the inference that he committed the charged offense and had sexual relations with his daughter, the victim named in the charged offense.

*330 The fact that the credibility of the victim witness is an issue in a sex case does not justify the admissibility of evidence that tends to corroborate that credibility if such evidence is in violation of established exclusionary rules of evidence.

In the case at bench, as in Kazee , the other-crimes evidence admitted against defendant clearly violated the exclusionary rule for character-trait evidence (Evid. Code, § 1101, subd. (a)), relevant only to prove that defendant committed the charged offense because he had a character trait, behavior pattern or disposition for committing such offenses. The fact that a victim’s credibility as a witness constitutes a crucial issue in a sex case does not offer any logical basis for creating the concept of witness-credibility corroboration as justification for evading the prohibition against the admissibility of other-crimes evidence, relevant only as character-trait evidence to prove disposition or a pattern of behavior. (Evid. Code, § 1100.)

To accept the reasoning process of Kazee as sound is to totally disregard the distinctions made by Evidence Code section 1101, subdivision (a), and Evidence Code section 1101, subdivision (b), with respect to when evidence that a defendant committed an uncharged offense becomes admissible and when such evidence is to be excluded. The cardinal rule set forth in Evidence Code section 1101, subdivision (a), is that evidence that defendant committed some other crime is inadmissible as character evidence to prove that he committed the charged crime.

The exception for admissibility provided for in Evidence Code section 1101, subdivision (b), is limited to such evidence that is relevant to prove some fact (such as motive, intent, identity, absence of mistake or accident) other than reliance upon relevancy because such evidence establishes the defendant’s disposition or pattern of behavior to commit such offenses.

To hold that defendant’s commission of incest with the victim’s sister comes within the exception of Evidence Code section 1101, subdivision (b), because such evidence corroborates the victim’s story necessarily accepts the relevancy of such evidence as establishing the defendant’s disposition or pattern of behavior to commit such offenses, from which the inference may be drawn that defendant acted in conformity with such disposition and behavior pattern and committed the offense charged against the victim. This reasoning process is directly contrary to the express language of Evidence Code section 1101, subdivisions (a) and (b).

*331 The view that evidence of a defendant’s commission of a similar sex offense is admissible automatically to support the credibility of the victim’s testimony is one that may just as logically be advanced to support admissibility in every nonsex case in which a defendant denies he committed the crime charged contrary to the victim’s testimony. Such a view appears to me to constitute an emasculation of the statutory prohibition (contained in Evid. Code, § 1101) against the admission of evidence that defendant committed a similar offense when its sole relevancy is that of proof of a disposition or character trait to commit the charged offense.