Robinson

After a jury found him guilty of the two felonies with which he was charged defendant moved for a new trial on the ground that his counsel was ineffective in failing to object to testimony of the victim which, as the trial court put it, described “a continuing course of conduct of sex acts over a several year period of time.” The trial court granted a new trial, explaining *751 that if an objection had been made “I would have sustained the objection” and the evidence of other offenses would not have been admitted. Soon defendant was faced with a first amended information which charged not two (2) but one hundred eleven (111) felonies. Not surprisingly the defendant moved to dismiss the one hundred nine (109) new charges on the ground that they were brought vindictively in violation of the due process clause of both the California and United States Constitutions. As to one hundred and six (106) of the new counts that constitutional question was mooted when they were dismissed pursuant to Penal Code section 995. As to the remaining three (3) new charges, the motion was denied. The single reason given was, “I am satisfied that the District Attorney’s purpose in adding some of the…

*748 Opinion

We issued an alternative writ of mandate in this case to examine petitioner’s claim of vindictive prosecution.

Petitioner was originally charged in a two-count information with committing a lewd and lascivious act upon his daughter Satasha between November 1, 1980, and November 17, 1984 (Pen. Code, § 288, subd. (a)) 1 and with committing oral copulation with Satasha, a person under the age of 14, between these dates (§ 288a, subd. (c)).

At the trial on April 1, 1985, Satasha, age 10, was the principal witness. She testified that, starting when she was 6, her father would sexually molest her when her mother left the house. This would occur as often as three times a week. The last molestation occurred between Halloween and Thanksgiving in 1984, when her mother had taken Satasha’s aunt to Willits. When her father started his sexual activity with her, he told her that she would get a spanking if she told. When she was older, he told her to go ahead and tell, knowing that she wouldn’t tell her mother. Satasha told no one of this activity of her father until about two weeks after the last incident when she told her mother.

Satasha’s mother testified that she had…

John K. Van de Kamp, Attorney General, Eugene Kaster and Mark S. Howell, Deputy Attorneys General, for Real Party in Interest.

OPINION

ANDERSON, P.J.

We issued an alternative writ of mandate in this case to examine petitioner's claim of vindictive prosecution.

Petitioner was originally charged in a two-count information with committing a lewd and lascivious act upon his daughter Satasha between November 1, 1980, and November 17, 1984 (Pen. Code, § 288, subd. (a)) [1] and with committing oral copulation with Satasha, a person under the age of 14, between these dates (§ 288a, subd. (c)).

At the trial on April 1, 1985, Satasha, age 10, was the principal witness. She testified that, starting when she was 6, her father would sexually molest her when her mother left the house. This would occur as often as three times a week. The last molestation occurred between Halloween and Thanksgiving in 1984, when her mother had taken Satasha's aunt to Willits. When her father started his sexual activity with her, he told her that she would get a spanking if she told. When she was older, he told her to go ahead and tell, knowing that she wouldn't tell her mother. Satasha told no one of this…