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People v. Waltz

California Court of Appeals, Third District, Sacramento
Jan 29, 2008
No. C050128 (Cal. Ct. App. Jan. 29, 2008)


THE PEOPLE, Plaintiff and Respondent, v. GENE DARNELL WALTZ, Defendant and Appellant. C050128 California Court of Appeal, Third District, Sacramento January 29, 2008


Super. Ct. No. 03F08187


After a jury trial, defendant Gene Darnell Waltz was found guilty of 11 counts of a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)), one count of oral copulation by a person over the age of 21 years with a child under the age of 16 years (§ 288a, subd. (b)(2)), one count of sexual penetration of a child under the age of 16 years by a person over the age of 21 years (§ 289, subd. (i)), and one count of sodomy of a child under the age of 16 years by a person over the age of 21 years (§ 286, subd. (b)(2)). Sentenced to 12 years in state prison, defendant appeals.

Undesignated statutory references are to the Penal Code.

Defendant contends that the trial court erred in: (1) instructing that the jury could find him guilty of counts of a lewd act upon a child under the age of 14 years based on any act shown by the evidence upon which they unanimously agreed, (2) instructing on requirements of the defense of duress, (3) denying a posttrial motion for disclosure of records of a psychologist who had treated the victims, and (4) admitting evidence of pornography in a computer defendant owned. He also contends that (5) he was prejudiced by ineffective assistance of counsel in failing to adduce evidence: (a) that he had been molested when he was a child by the brother of the victims, and (b) of statements of the victims to a treating therapist. Lastly, he contends (6) the prosecutor committed prejudicial misconduct in asking “were they lying” questions to him during cross-examination. Finding no merit in his contentions of error, we shall affirm the judgment.


In March of 2002, Mr. and Mrs. V. and their daughters T.V. and S.V., then 12 and 11 respectively, moved to the residence of defendant. Defendant, then age 21, is Mr. V.’s nephew and the girls’ cousin. At the end of June of 2003, defendant traveled to Scotland to marry on August 10th. He told the V.’s he wanted them to move out of the house before his return.

On Saturday, August 9, 2003, T.V. indicated to her aunt that she had engaged in sexual conduct with defendant. Her aunt alerted T.V.’s parents and they, after questioning T.V. and S.V., took them to see their pediatrician the following Monday. The pediatrician told the parents that she was required to notify the police.

On August 20, 2003, Sacramento County Sheriff’s Deputy Steven Wright questioned S.V. and T.V. T.V. told him that defendant had been sexually molesting her. Around the time she turned 13, in April of 2002, he had commenced sexual touching. She recounted various incidents including digital penetration of her vagina, manipulation of his penis, coitus, fellatio, cunnilingus, and sodomy. She told Deputy Wright defendant had shown her pornography on his computer. She said the last sex act had occurred a couple of days before he left for Scotland. S.V. told Deputy Wright that defendant had once put a finger in her vagina and she had pushed him away and had rejected his sexual overtures on two other occasions.

On September 11, 2003, S.V. and T.V. were interviewed on videotape. S.V. repeated her accusations. T.V. also repeated her accusations, estimating there had been almost 100 incidents of substantial sexual conduct.

On September 25, 2003, Detective Brent Lehr of the Citrus Height Police Department recorded a telephone conversation between T.V. and defendant. She told defendant that her period was late after they had had sex “last time” and that she was scared she could be pregnant. He replied: “Really?” She affirmed and said she did not want her parents to know they had been “fooling around.” He agreed and indicated he did not think she was pregnant. He said this had happened before. She agreed, but said she was feeling really weird and was two months late. He said he had not ejaculated. He assured her that she was not pregnant and promised not to “touch” her again or to “touch [S.V.] either.” He “promise[d]” she could not get pregnant from “when [she] sucked [his], uh, --,” notwithstanding that he had “like ejaculated in [her] mouth, and [she] actually . . . swallowed it a couple of times.” He promised that would not make a difference: “I know that for a fact.”

Defendant was arrested the next day. After a Miranda admonition he agreed to answer Detective Lehr’s questions. Initially defendant denied all allegations of sexual conduct. After learning that the prior day’s telephone conversation had been tape-recorded, he conceded: “Some--little bit--stuff did happen.” He let her touch his penis a few times, some fellatio occurred, “just twice,” “maybe four, five incidents” total, he “touched her [vagina] maybe once, twice, three times,” on one occasion she straddled him sitting in a chair and there was penis-vagina contact.

Defendant was tried under an information alleging, inter alia, 10 counts of a lewd act upon T.V., a child under the age of 14 years, “[o]n or about and between April 05, 2002, and April 04, 2003.”

T.V. testified that beginning in approximately April 2002 and ending on June 28, 2003, defendant engaged her in a variety of sexual touching acts averaging from two to three times a week. She gave details about a plethora of sex acts occurring in defendant’s house and several acts of digital penetration during long automobile rides as she sat in the back of the van with defendant in the middle seat and her parents in the front seats.

Defendant testified in pertinent part as follows: T.V. had “shocked him” on various occasions by asking him questions about sex. He demurred. Then one night she appeared, naked from the waist down, and he “completely freaked out.” She asked to see his penis. He refused. On a night thereafter she asked again. He refused. “And she said that I’ve seen her naked, and her dad would kill me if she told him that I have seen her naked. But if I showed her, that I wouldn’t have to worry about her dad finding out.” So, he “panicked,” “tried to save [him]self” and “let her look.” “[A]ll of a sudden, . . . [s]he grabbed [him].” On another occasion he allowed her to “feel it again” in response to similar disclosure threats. Finally, it got to the point where he “had to draw the line” because “she wanted to suck on it.” She was infuriated, threatened retaliation, and stormed off.



Defendant contends that the trial court erred in failing to limit the jury to a verdict on the lewd conduct on the T.V. counts based on the prosecutor’s suggestion of corresponding incidents. He correctly concedes that the prosecutor made no binding election. However, he argues the court was obliged to impose an election under People v. Castro (1901) 133 Cal. 11, 13 (Castro) and People v. Williams (1901) 133 Cal. 165, 169 (Williams). The Attorney General replies that there is no right to an election if the jury is instructed, as here, that all jurors must agree that he committed the same act in order to return a verdict of guilty as to each count. An election is required, if at all, only when the defense demands one; that did not occur, hence the trial court did not err.

In closing argument the prosecutor listed by number the 10 charged counts of a lewd act upon T.V. and recounted testimony about an incident which she submitted satisfied the elements of the offense. Then she made the following remarks:

“You just need to all agree that a certain act happened and attach it to a count number. In the alternative, there is another situation[] that you might unanimously be able to agree on, such as the trips in the car that happened when she was 13.

“Trips back from the district convention at the Cow Palace, from her father’s trip when she was in San Jose, California State Fair, and any of the times she talked about him, you know, having her masturbate him with the cloth things.

“Essentially, you have to all agree that there was a certain act that occurred and it happened during that time frame. That can qualify. That’s what the law says. When there is multiple acts charged, any of those qualify. [Sic.]

“You just can’t say six of us think the van thing happened, and six think something else. You have to agree on the same act. There are a number to choose from.” There was no objection to this argument that alternatives were permitted.

During deliberations the jurors sent a note to the court asking if they could substitute incidents other than those corresponding to each count as described by the prosecutor in closing argument if they agreed the other incidents, “i.e., the van incidents,” violate the same law. The court, after discussing the matter with counsel in an unreported session in chambers, directed the jury to review the unanimity instructions and said: “You may return verdicts on any of the counts based on any act or acts which you unanimously agree upon.”

The trial court had given the following instructions on the issue of unanimity:

“The Prosecution has introduced evidence for the purpose of showing that there is more than one act upon which the conviction on Count[s] [one] through [ten] and [twelve], [thirteen] and [fourteen] may be based.

“The defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts.

“However, in order to return a verdict of guilty to Counts [one] through [ten] and [twelve], [thirteen] and [fourteen], all jurors must agree that he committed the same act or acts.”

Defendant submits this deprived him of a right under Castro and Williams to a binding election by the prosecutor of the acts on which he could be found guilty.

In Castro the defendant was charged with one count of rape on a specific day but evidence of four acts of rape was adduced and the jury instructed that the defendant should be convicted if any of the four acts was established beyond a reasonable doubt. (Castro, supra, 133 Cal. at pp. 12-13.) The Supreme Court said:

“[C]ertainly, the defendant was not called upon to defend himself against all of these respective acts of intercourse, extending through a period of several months. The information only charged one act, and upon that allegation the case must stand or fall. Possibly, any one of the acts sworn to by the [victim] could have been selected by the state as the act charged in the pleading, but the entire four acts could not be so selected.” (Castro, supra, 133 Cal. at p. 13.)

In Williams the charge was one count of statutory rape and the evidence was that the defendant cohabited with the 13-year-old [victim] for four months with multiple acts of intercourse each day and numerous specific acts described in detail. (Williams, supra, 133 Cal. at pp. 167-168.) Citing Castro, the Williams court reasoned:

“As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted. And how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the [victim], he was to be tried? Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by the general designation, would be a judicial farce, if it were not something a great deal worse.” (Williams, supra, 133 Cal. at p. 168, citing Castro, supra, 133 Cal. at p. 11.)

The Williams opinion suggested that the prosecution in such a case should inform the defense of the specific offense on which it intends to rely or the first evidence of an offense would be deemed a selection “and unless that precise offense is proven, the defendant is entitled to an acquittal.” (Williams, supra, 133 Cal. at p. 169.)

This reasoning was revisited in People v. Jones (1990) 51 Cal.3d 294, 305 (Jones): “Much of the analytical difficulty in this area is attributable to two early decisions of this court, [Castro] and [Williams].” In Jones the defendant was charged with six counts of lewd conduct applicable to Sammy J. (Jones, at pp. 301, 303.) Sammy testified that defendant molested him four to six times on camping trips and eight or 10 times in the bathroom or shower. (Id. at p. 302.)

The Supreme Court held that such nonspecific or “generic” testimony of child molestation was sufficient to sustain the conviction on all six charged counts, reversing the contrary decision of the Court of Appeal. (Jones, supra, 51 Cal.3d at pp. 322-323.) It noted that recent case law had concluded that “the due process and evidentiary concerns that troubled us in Castro and Williams do not outweigh the state’s interest in fully prosecuting and convicting resident child molesters.” (Jones, at p. 311.) The Supreme Court agreed with this case law, concluding that, “given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant’s due process right to fair notice of the charges against him.” (Id. at p. 318.)

The Jones opinion expressly relies on Justice Sims’s concurring opinion in People v. Gordon (1985) 165 Cal.App.3d 839, 868-869 (disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 and People v. Lopez (1998) 19 Cal.4th 282, 292): “‘In my view, modern procedures in criminal cases have eroded if not eliminated Williams’[s] concerns about fair notice in the indictment process . . . .’ [¶] . . . According to Justice Sims the ‘modern answer’ to Williams’s rhetorical inquiry as to how defendant can prepare a defense against non-specific molestation charges ‘is that, at a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.’ ([Gordon, supra], at pp. 870-871 . . . .)” (Jones, supra, 51 Cal.3d at p. 317.)

Arguably, in view of the holding and reasoning in Jones, defendant’s claim--predicated on Castro and Williams, that the jury must be bound to an election by the prosecutor or the court--is simply outdated. The purpose of the election rule in Williams, “at least as early as the commencement of the trial” (Williams, supra, 133 Cal. at p. 169), was so the defendant “may know upon what specific charge he is to be tried, so that he may prepare his defense” (id. at pp. 168-169). Here, as in Jones, defendant was informed of all the charges that would be raised at trial through discovery. He could employ the various modern procedures to test those charges and prepare his defense. Jones concludes that the due process concerns underlying the Williams election rule have been obviated by those procedural changes.

“When the reason of a rule ceases, so should the rule itself.” (Civ. Code, § 3510.)

However, the Court of Appeal, First Appellate District, Division Five in People v. Salvato (1991) 234 Cal.App.3d 872 has held that the Castro and Williams election rule does survive, in one limited circumstance: when the defendant demands an election. (Salvato, at pp. 879-880.) Assuming for the sake of argument that Salvato is correct about a limited survival of the election requirement, it suffices to say that here we find no indication in the record that defendant made such a demand. In these circumstances, the prosecutor was not required to make an election, nor was the court required to impose one upon the jury.


Defendant contends that the trial court erred in instructing on the defense of duress. He submits that the instruction was unwarranted as it had no basis in the evidence and it undermined a legitimate aspect of his theory of the case. The prosecutor replies that the instruction was warranted and proper. We agree.

The court instructed on duress as follows: “A person is not guilty of a crime when he engages in conduct otherwise criminal when acting under threats and menace under the following circumstance: [¶] One, where the threats and menaces are such that they would cause a reasonable person to fear that his life would be in immediate danger if he ever did not engage in the conduct charged. [¶] And, two, if this person then actually believed that his life was so in danger. This rule does not apply to threats, menaces, and fear of future danger to his life.”

After counsels’ closing arguments: “The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party.” (§ 1093, subd. (f).) In his testimony defendant plainly sought to excuse some sexual contact with T.V. on the ground that she threatened to expose him to her parents. The prosecutor thus reasonably requested instruction on the law of exculpation by reason of a threat, as a point of law pertinent to the issue of guilt or innocence.

Here is the colloquy on the instruction in the trial court:

“[DEFENSE COUNSEL]: Judge, we object to the instruction. We’re not requesting the instruction, and we think it does not apply. [Defendant] should be free and I should be free to argue the coercion elements as it applies to this case, assuming it does affect his will.

“So I think that would be an inappropriate instruction to give to the jury and inappropriately point him to shift the burden of proof upon the defense, and that would be a violation of his due process rights.

“I would object to that instruction being given.

“THE COURT: I’m not sure I understand your shifting the burden to the defense point.

“[DEFENSE COUNSEL]: Well, the jury may think by giving that instruction that somehow it is our burden of proof. Because normally that instruction is in there at the defense request. And so, therefore, we have the burden of proving those elements by a preponderance of the evidence and thus raising the burden and shifting the burden from the prosecution in proving it is not true beyond a reasonable doubt.

“So by allowing the prosecution to have that instruction and allowing them to do that then it makes--I think it puts--shifts the burden to us.

“THE COURT: Ms. [Prosecutor]?

“[PROSECUTOR]: I don’t believe that there is any burden shifting. The instruction itself does not address burden. It merely gives a definition of what duress is legally defined under the law.

“If counsel is going to argue that [defendant] was, in fact, under duress or coercion when he participated in the act therefore raising it as a defense to his acts, then I think the jury should have the actual law on when something does or does not rise to a defense under the law of duress.”

The defense trial objection is cryptic and affords no persuasive ground for the trial court to deem the requested instruction incorrect or not pertinent to the issue. The defense is not “free to argue the coercion” affecting defendant’s will as an exculpatory ground beyond the limit of the law of coercion.

On appeal defendant argues the instruction was incorrect because it could have been misleading. He suggests that he actually endeavored to argue, not a defense of duress, but rather that he acted out of fear rather than from a lewd intent. He suggests this was to allow the jury to convict him of the lesser included offense of assault or battery. This apocryphal afterthought presents too little and comes too late. If defendant had had this theory in mind, he should have presented it to the court in a timely manner as a basis of objection. However, even if it had been raised, it does not present a basis to reject a proper instruction on duress as a point of law pertinent to the issue of guilt or innocence.

Such a claim might have been tendered to support a pinpoint instruction on the nature of the intent requirement of the lewd act offense. However, even if proper, pinpoint instructions “are not required to be given sua sponte.” (People v. Saille (1991) 54 Cal.3d 1103, 1119.) We imply no view on the merit of defendant’s view of the intent requirement.


Defendant contends that the trial court erred in failing to grant a new trial on the ground that defense counsel was prejudicially ineffective in failing to allow the prosecution to adduce evidence of mutual fellatio of T.V.’s older brother and defendant. He argues his counsel had no reasonable tactical basis to oppose the prosecutor’s in limine motion to introduce this evidence for the purpose of showing a motive for the charged offenses. The Attorney General replies, inter alia, there was a reasonable tactical basis for counsel’s decision.

“‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’” (People v. Williams (1988) 45 Cal.3d 1268, 1318.) “To establish entitlement to relief for ineffectiveness of counsel defendant must show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699].) [¶] Under Strickland v. Washington, our review of counsel’s performance is to be highly deferential.” (People v. Duncan (1991) 53 Cal.3d 955, 966.)

Defendant submits that there was no reasonable tactical basis to oppose the prosecution’s motion. He reasons his counsel should have foreseen that evidence about this incident, which T.V.’s father, according to defendant, unfairly blamed on defendant, was crucial to explain why defendant did not immediately inform T.V.’s father of her alleged sexual overtures. Defendant seeks to curtail the ordinary scope of counsel’s tactical latitude by attributing counsel’s decision to a failure to investigate and prepare for trial. He suggests that this attribution is supported by an indication that counsel had changed his mind later in the trial and attempted, unsuccessfully, to adduce the evidence.

Assuming, for the sake of discussion, that counsel did change his view of the import of this evidence does not compel the conclusion that he was ineffective in investigating or preparing the case for trial. The shifting fortunes of trial or even mere reappraisal can justify diametrically opposed views, both within the range of reasonable trial tactics. Defendant fails to show the choice of his counsel was outside the pale of tactical alternatives. He cannot demonstrate an abuse of discretion in denying the new trial motion on this ground.


Defendant contends that his trial counsel was prejudicially ineffective in failing to adduce testimony from the victims’ treating psychologist. He argues failure to call the witness was ineffective assistance because she could have provided evidence that T.V. and S.V. falsely accused him of uncharged sexual assaults against one of their friends and their older sister. The Attorney General replies that the claim is “speculative, even bordering on imaginary.” We agree with the Attorney General’s assessment.

Defendant points to a police detective’s memorandum asserting that the psychologist had told him she was treating T.V. and S.V. and that, “reportedly, [T.V.] and [S.V.’s] older sister, [K.V.], now 22 years old, is possibly a victim of sexual assault by [defendant] when she was 14 years of age. [The psychologist] stated that apparently a friend of [T.V.] and [S.V.] by the name of [A.] may be a victim of an attempt[ed] sexual assault by [defendant].” Defendant asserts that further investigation determined “these were false allegations.”

We will assume for the sake of discussion that a competent and nonprivileged showing could be made that T.V. and S.V. were asked about other “possible victims” and that both replied their older sister and A. “may” “possibly” have been assaulted. We will assume further that neither possible additional victim was in fact assaulted. It would still remain entirely speculative that this would show a false accusation by T.V. or S.V. reflecting adversely on their credibility. There is a greater likelihood that pursuing this line of inquiry would have revealed nothing derogatory about the victims and perhaps even further besmirched defendant. The claim on this record that defense counsel’s failure to do so was ineffective assistance is entirely without merit.


Defendant suggests that the trial court erred in denying a posttrial discovery motion to disclose records of the aforementioned psychologist who treated T.V. and S.V. He asks that we review the records, sealed by the trial court, to determine if there is any relevant information contained therein. The Attorney General replies, inter alia, that the records are privileged. We agree.

In preparation for his motion for a new trial, defendant sought to discover the records of the psychologist to determine if there had been inconsistencies between the victims’ trial testimony and statements they made to her. In a supporting declaration his counsel pointed to the potential inconsistency discussed in the immediately preceding section of this opinion. The only authority cited for such disclosure was People v. Hammon (1997) 15 Cal.4th 1117 (Hammon). The trial court, in unreported proceedings held in chambers, decided that good cause had been shown for in camera review of the records.

In the ensuing memorandum supporting the motion for new trial, the defense amplified its purported claim under Hammon. It asserted that the prosecution may have had access to these notes before trial and, if so, the privilege was “broken” and all exculpatory material would be subject to disclosure. However, the prosecution, in its opposition, denied that it ever had had possession of the material.

Contrary to the assertion of the defense at trial, there is nothing in Hammon that authorizes an in camera review of records protected by the psychotherapist-patient privilege in these circumstances. In Hammon the lower courts accepted the defense claim that in camera review was warranted on a showing of good cause. (Hammon, supra, 15 Cal.4th at p. 1122.) The Supreme Court rejected this view, overruling contrary case law, and holding that there is no right to pretrial disclosure of such privileged information. (Id. at p. 1128.) Hammon acknowledged only the right, as interpreted in Davis v. Alaska (1974) 415 U.S. 308 [39 L.Ed.2d 347], to override a privilege that prevented the admission at trial of evidence, already known to the defense, for the purpose of cross-examining a crucial witness for bias. (Hammon, supra, at p. 1128.)

On appeal defendant supplies no points and authorities to support his implicit preliminary claim that the trial court was required to conduct an in camera review in these circumstances. Giving him the benefit of the points and authorities contained in the record of the proceedings below, we have no basis for granting an in camera review. Accordingly, although we granted defendant’s motion to augment the record with the psychologist’s evaluation, we decline the request to review the sealed records.


Defendant contends that the trial court erred admitting evidence of pornography found on a computer owned by defendant. Defendant argues the evidence was irrelevant because the computer was accessible to the others in the household. The consideration that defendant’s computer was accessible to a small group of others does not render the evidence irrelevant.

The material included images and videos entitled “Real Kiddy Porn,” “Fingering a Young Girl,” and “Taboo Young Teens.” The offer of proof was that T.V. would testify that defendant had shown her such material in the course of persuading her to engage in the charged offenses.

The challenged ruling occurred in the in limine proceedings at the outset of trial. The defense objected to evidence of the pornography, in part because the computer was accessible to others in the household, and “there is no telling where [the pornography] came from.” The prosecutor replied that defendant could have put the material on the computer, that the others in the household would testify that they had not downloaded the files, and the issues of who downloaded the images and whether defendant showed them to T.V. were for the trier of fact.

On appeal defendant relies upon two analogies to support his claim that the evidence was irrelevant. The first is to the sufficiency of evidence to prove possession of contraband. (See, e.g., People v. Crews (1952) 110 Cal.App.2d 218, 220.) The analogy is false because the standard for sufficiency of such evidence is that it affords an inference at the level of beyond a reasonable doubt. However, relevancy has a far lower standard, “any tendency in reason to prove or disprove.” (Evid. Code, § 210.)

Defendant’s second analogy is to evidence of a hearsay statement subject to an exception that turns on the identity of the declarant. (See, e.g., People v. Witt (1975) 53 Cal.App.3d 154, 174, overruled on a different ground in People v. Posey (2004) 32 Cal.4th 193, 205, 215.) This analogy fails on the same ground. The issue there is competency of the evidence, which requires a higher standard of persuasion (see, e.g., 1 Wigmore, Evidence (1983) § 14.1, p. 704); i.e., that more likely than not the statement was uttered by the person who would be subject to the hearsay exception.

Pornographic images of sexual behavior with children appeal to persons with an unusual sexual proclivity. The fact that a computer owned by and accessible to a person (and a few others) accused of child molestation is found to contain such material has some tendency in reason to prove a consequential, disputed fact, e.g., that any contact with the genitalia of the child or vice versa was “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person.” (§ 288, subd. (a).)

Real evidence found in a defendant’s home that is connected to a charged crime tends to connect him to the crime. It is not rendered irrelevant merely because he cohabits with other people. That consideration may attenuate the probative force of the evidence, but it does not deprive it of any tendency in reason to prove a connection. Accordingly, the trial court did not err in denying the motion to suppress this evidence.


Defendant contends that the prosecutor committed prejudicial misconduct in posing “were they lying” questions to defendant. He argues that under People v. Chatman (2006) 38 Cal.4th 344 (Chatman), the questions amounted to misconduct. The Attorney General replies, inter alia, that the claim is barred because no objection was made in the trial court. The Attorney General is correct.

Chatman acknowledges that repeated “were they lying” questions of a defendant who is a stranger to the prosecution witnesses, thus having no basis for insight into their bias, interest, or motive to be untruthful, can amount to prosecutorial misconduct. (Chatman, supra, 38 Cal.4th at pp. 381-382.) Defendant did not object in the trial court to the “were they lying” questions. Accordingly, absent unusual circumstances, the claim of misconduct, if any, is forfeited. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 959.) No claim of unusual circumstances is tendered.


Defendant notes the amended abstract of judgment incorrectly calculated his total prison commitment for counts four, twelve, thirteen and fourteen at three years instead of the actual term of four years. The Attorney General properly concedes the abstract must be modified to reflect an aggregate term for these four counts of four years. We accept the concession and shall order the abstract of judgment corrected accordingly.

The amended abstract contains another error. The trial court sentenced defendant to concurrent six-year terms for counts two and three and five through ten. The abstract fails to list counts six through nine. We shall order the abstract corrected to include these missing counts and the concurrent terms.

Finally, under defendant’s financial obligations, the amended abstract contains the surname of the minor victims. The abstract shall be amended to delete the identifying surname and replace it with the first initial of the surname.


The judgment is affirmed with directions to the trial court to (1) correct the attachment page of the amended abstract of judgment to show a total of four years, rather than three, for the four counts listed, (2) add defendant’s convictions for counts six through nine and the respective six-year concurrent term for each to the abstract, and (3) delete the surname of the minor victims where it appears in the financial obligation portion of the amended abstract and replace it with the first initial of the surname. A certified copy of the second amended abstract shall be forwarded to the Department of Corrections and Rehabilitation.

We concur: NICHOLSON , Acting P.J., MORRISON , J.

Summaries of

People v. Waltz

California Court of Appeals, Third District, Sacramento
Jan 29, 2008
No. C050128 (Cal. Ct. App. Jan. 29, 2008)
Case details for

People v. Waltz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GENE DARNELL WALTZ, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Jan 29, 2008


No. C050128 (Cal. Ct. App. Jan. 29, 2008)