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District Court of Appeal, First District, Division 1, California.


Cr. 2433.

Decided: November 06, 1947

William H. Quinn, of Oakland, for appellant. Fred N. Howser, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

Defendant was charged in two counts of an information alleging (1) a violation of Penal Code section 288, defining a lewd and lascivious offense against a child under the age of fourteen years, punishable by a term of imprisonment of from one year to life; and (2) a violation of Penal Code section 288a, designated as sex perversion. The violations are based upon two incidents directly pertaining to one occurrence, involving a female child of the age of six years, and consisted (1) of defendant placing his ‘private parts upon the bare body and private parts' of the child; and (2) ‘copulating the mouth’ of the defendant ‘with the sexual organ’ of the child. Defendant was convicted on each count. It was ordered that the sentence on the second count run concurrently with that on the first.

Two questions are raised by appellant: the sufficiency of the evidence to support the verdict, and the erroneous admission of alleged hearsay evidence claimed to be prejudicial to the rights of the defendant. A portion of such evidence was presented without objection, and the remainder over the objection of appellant. The evidence claimed to be prejudicial consisted in (1) testimony of a police officer that he was taken by the child to a partly deserted house, where the child explained how she entered the house, and the details of the commission of the offense; (2) that the child complainant was permitted to testify that she went down to the City Hall and picked defendant out of a line-up of men; (3) that a witness was permitted to testify that the child pointed out the defendant to the witness on September 15, 1945, the date of the commission of the offense, and the same witness was permitted to testify that thereafter he recognized the defendant in a ‘line-up’; (4) that a police officer testified that the child, on December 12, 1945, identified the defendant in a ‘line-up’ of ten men in jail as the man guilty of the acts committed upon her on September 15, 1945.

A child, under fourteen years of age, qualified as a witness, need not be corroborated on a charge of a violation of section 288. The reason for the rule is that such child is not classed as an accomplice. Penal Code, sec. 1111, as amended by Stats. of 1915, p. 760; People v. Slaughter, 45 Cal.App.2d 724, 115 P.2d 30. In People v. Putnam, 20 Cal.2d 885, 129 P.2d 367, the defendant was convicted of violating section 288. The court held (page 891 of 20 Cal.2d, page 370 of 129 P.2d) that ‘No corroboration is required in cases like the present one since it is ordinarily precluded by the very nature of the offense.’ See, also, People v. Carlson, 73 Cal.App.2d 933, 167 P.2d 812; People v. Campbell, 80 Cal.App.2d 798, 182 P.2d 626.

In sexual crimes against children, corroborative evidence is admissible unless objectionable on some specific ground (8 Cal.Jur. 75), but it is not always essential. There must be some awareness of the wrongfulness of the act to determine that a child witness is an accomplice. Section 288a denounces the performance of a specified act as penal, but no age limit of the victim is designated. ‘A child under the age of fourteen is not an accomplice whose testimony requires corroboration within section 1111 of the Penal Code, in the absence of clear proof that he knew the wrongfulness of the act committed.’ 23 Cal.Jur. 402. In People v. Vaughan, 131 Cal.App. 265, 21 P.2d 438, involving a girl eleven years old, wherein the accused was charged with a violation of Penal Code sections 288 and 288a, it was held (page 267 of 131 Cal.App., page 439 of 21 P.2d): ‘It is not necessary, in order to sustain conviction of either of these offenses, that the testimony of a child of tender years be corroborated, since such a child cannot be classed as an accomplice.’

All of the testimony which appellant now claims as inadmissible was corroborative of the child's testimony. If inadmissible, was its admission prejudicially erroneous? Appellant now requests that the alleged hearsay testimony be expunged from the record; that, if considered, it was prejudicially erroneous, and if deleted that the evidence is insufficient to sustain the verdict. This claim requires that this court relate the evidence.

The mother established the child's age. Whatever confusion may have arisen in the mind of the child as evidenced by her testimony relative to the date of the commission of the offense may be set at rest. A boatswain in the United States Coast Guard, not related to the child but living with his wife at the child's home, testified that the child had made a complaint at about 2:00 or 2:30 on the afternoon of September 15, 1945, and shortly thereafter the child pointed toward a man, who was the defendant, walking up the street near their home. In addition, the defendant testified that during the month of September, 1945, work was slack and that he had been laid off on Saturdays and Sundays, and that September 15 was the day on which he was accused of the offense. The defendant at that time denied the commission of the offense, but admitted that he had talked to the child and stated: ‘I just asked the little girl if she wanted ice cream.’

On direct examination the child identified the defendant as the perpetrator of the offense, and testified that when she first saw defendant she was skating in front of her home. He was walking at the time and said ‘hello.’ He then took her to a vacant house in the block. ‘He tried to get in the front way but he had to go back, through the back way.’ They went into the second room of the house which contained a bed and a table. He took off his hat and coat, laid a bottle of whiskey or wine on the bed, took off part of her clothing and unbuttoned his pants. The defendant then proceeded to perform the acts referred to in counts one and two. The child testified: ‘I said I wanted to go home but he said, ‘Wait for a little minute,’ and I said I wanted to go home again, and he said, ‘Wait,’ and I waited for a little minute and I said I wanted to go home. Finally he let me go. I went out the front door and he went out the back door. I skated up the hill as fast as I could.' The child proceeded to her home and made complaint to a married woman who was taking care of her that afternoon while the mother shopped or worked.

Whatever may have been said in People v. Adams, 14 Cal.2d 154, 93 P.2d 146, is not applicable to the facts of the present case. In the Adams case ‘many’ discrepancies are noted. In the present case only a few appear. In the Adams case, among other errors, the mother of the child testified to conversations with the child occurring two years prior to the alleged offense; the district attorney was guilty of misconduct; a child, who was unable to qualify as a witness, was permitted to make statements before the jury. In the Adams case any one of the errors may have been sufficient to reverse the judgment, or each error may have been trivial, but collectively were deemed prejudicial. Like incidents do not appear herein.

In the present case approximately nine months after the commission of the offense the child, on cross-examination, made inconsistent and contradictory statements as to the date, the description of the defendant, including his height, weight and attire. There was some slight confusion relative to the color of the house, and other minor discrepancies appear in the record of the child's testimony. There is no uncertainty in the child's description on the witness stand of the furnishings of the house. The testimony relative to the inside of the house was verified by police officers on the witness stand who examined the house on the day of the commission of the offense. The testimony of the child describing the furnishings was admissible though her statements to the officers on the day of the commission of the offense were not proper evidence. Within an hour after the commission of the offense, and while he was proceeding along the street where he had originally met the child, appellant had in his possession a bottle of intoxicating liquor. In his hand he held an ice cream cone which he admitted to the boatswain witness he had promised the child.

The child was cross-examined relative to the description of the defendant, the house, and the circumstances of the commission of the offense. The record indicates that she was confused on some of these matters. Under such circumstances it was proper thereafter to present evidence to show the truth or falsity of the child's testimony on the matters upon which she was interrogated on cross examination.

The statements of the child to the police officer shortly after the commission of the offense show that she entered the house; giving the location of the table and bed therein; the fact that she identified the defendant some time thereafter in a line-up; the corroboration of the police officer on this point and that the boatswain identified the defendant in a line-up were unnecessary corroborative evidence that might well have been kept out of the record but was not prejudicially erroneous. The testimony of the child is not inherently improbable. People v. Carlson, supra; People v. Kearney, 20 Cal.2d 435, 126 P.2d 612. In People v. Chaddock, 2 Cal.App.2d 643, 645, 38 P.2d 473, it is said: ‘Conflict in evidence created by contradiction or otherwise does not constitute inherent improbability nor of itself alone constitute ground for reversal by this court.’ In People v. Kearney, supra, the court said (page 436 of 20 Cal.2d, page 613 of 126 P.2d): ‘Minor inaccuracies and uncertainties in the testimony of the prosecutrix do not serve to destroy her credibility as a witness or render her story unbelievable. On the contrary, a reading of the record indicates that a child of such tender years could have related the story with such detail and consistency only if she had actually undergone an impressionable experience such as that narrated by the prosecutrix and which led to defendant's conviction on count two.’ It was held in People v. Quinn, 12 Cal.App.2d 752, 754, 55 P.2d 1277, 1278: ‘Reviewing judges are, obviously, in no position to determine the credit which should be accorded to witnesses or to weigh their testimony. Undoubtedly for that reason our Constitution * * * provides that the appellate courts are not authorized to review evidence, except where, on its face, it may justly be held that it is insufficient to support the ultimate issue involved, in which case it is not a review of a question of fact, but purely one of law.’ It is said in People v. King, 53 Cal.App.2d 123, 127, 127 P.2d 605, 607: ‘However dubious we might be, from a reading of the cold record of this case, as to the verity of the testimony given by the prosecuting witnesses, unless we can justly conclude that their entire testimony is per se unbelievable we are without authority to interfere with the findings of the triers of fact.’ The claims that the admission of evidence was prejudicial to the rights of the defendant, and that the evidence is insufficient to support the verdict are without merit.

In People v. Greer, 30 Cal.2d 589, 184 P.2d 512, it was held that where the same act forms the basis of a prosecution under Penal Code section 288 and likewise was an act that constituted another crime under any provisions of part one of the Penal Code, separate punishment for the additional offense was not authorized. The reason for the rule is the language used in section 288 as amended in 1937 (Stats.1937, ch. 545), and the fact that the punishment under section 288 was greater than provided for the other two offenses named in People v. Greer. Penal Code, sec. 261 (1) and Welfare and Institutions Code, sec. 702. The court said (page ___ of 30 Cal.2d, page 520 of 184 P.2d): ‘Section 288 now specifically includes acts constituting other crimes and permits a greater penalty for those acts, if they are committed with specified intent, upon a child under 14 years of age.’ The rule is only applicable when the same act is relied upon for more than one conviction. (page ___ of 30 Cal.2d, page 520 of 184 P.2d.)

The child in the present case was under fourteen years of age and the acts designated in the two counts occurred as a perpetration of an attempt to commit rape (People v. Esposti, Cal.App., 185 P.2d 866) or an assault with intent to commit rape, Penal Code, sec. 220. No charge of rape or of a direct lesser offense, included in rape, is involved in the present case. In the Greer case, the court said (page ___ of 30 Cal.2d, page 521 of 184 P.2d): ‘To hold that the removal of the prosecutrix’ underclothing constitutes an act separate from the rape, however, would be artificial in the present context and would permit double punishment not authorized or contemplated by section 288.' In the present case the act set forth in count two as a violation of section 288a constituted an act that was not separated from the facts related in count one, but is a necessarily included offense under the facts of this case, and the evidence is sufficient to base a verdict thereon. Under the holding in the Greer case, therefore, it must be determined to be a violation of section 288. As the penalty provided for a violation of section 288 is imprisonment for ‘one year to life,’ and that for violation of section 288a imprisonment for ‘not exceeding fifteen years,’ it appears that in the maximum if not the minimum the punishment is greater under the provisions of section 288. Construction of a penal statute more favorable to the offender is ordinarily preferable and is the prevailing rule. People v. Ralph, 24 Cal.2d 575, 150 P.2d 401; People v. Greer, supra. By that rule this court is bound.

The judgment and the order denying defendant's motion for a new trial on count one are affirmed. The judgment and the order denying the motion for new trial on count two are reversed. On count two the trial court is directed to proceed in accordance with the views expressed herein.

WARD, Justice.

PETERS, P. J., and BRAY, J., concur.