PEOPLE v. BERNSTEIN

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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. William G. BERNSTEIN, Defendant and Respondent.*

Cr. 1248.

Decided: September 19, 1958

Edmund G. Brown, Atty. Gen., E. Clarke Savoy, Dist. Atty., George Roth, Deputy Dist. Atty., Fresno, for appellant. Loe R. Friedman, San Francisco, for respondent.

Defendant William G. Bernstein was charged with contributing to the delinquency of minors in an information filed in the Superior Court of Fresno County. Thereafter, he filed a motion in said court to set aside the information on the ground that he had been held to answer without reasonable or probable cause. The People have appealed from the order granting this motion.

The testimony adduced at the preliminary examination is set forth in the reporter's transcript and is in substance as follows: Michael Enns, aged eight years, and his sister, Sandra, aged six years, lived with their mother, Beverly Enns, in a two bedroom house in Fresno. One bedroom was occupied by the children and the other by the mother, who had obtained a divorce from her husband, the father of the children. Michael testified that the defendant, Dr. Bernstein, came to the home ‘pretty often’; that ‘sometimes he comes in the day and sometimes he comes in the night and morning’; that once the doctor came at night and he saw him there the next morning; that on more than one occasion the doctor took a shower in the home and that on one occasion he saw the doctor go to the shower in his underclothes, coming from his mother's bedroom to the shower room; that his mother was in the bedroom or kitchen at that time, dressed in a robe and pajamas; that he has seen the doctor and his mother in her bedroom quite a few times; that one afternoon, when he was returning from play, his mother's bedroom door was partly open and he saw his mother and the doctor lying on the bed, and that his mother ‘had a headache’.

Cameron Enns, the divorced husband of Mrs. Enns and father of the children, testified that he saw a Porsche car, which he believed to be the defendant's, parked in front of Mrs. Enns' home at 1:30 a. m. on February 21, 1958, and again on March 4, 1958, at 10 p. m.; that he saw the same car there six or eight times in the past year.

Officer Perry Foster testified that he saw defendant Bernstein's car close to the front of the house on March 4, 1958, and checked the registration out through the police department.

The principal question here involved is whether there was reasonable or probable cause to hold the defendant to answer upon a charge of contributing to the delinquency of Michael Enns.

Section 702 of the Welfare and Institutions Code provides, in part, that

‘Any person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of any of the subdivisions of Section 700 or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands or persuasion, induces or endeavors to induce any person or ward of the juvenile court under the age of 21 years to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of any of the subdivisions of Section 700, is guilty of a misdemeanor * * *’

Among the persons under 21 years of age enumerated in section 700 of the Welfare and Institutions Code, subsection (k) as being within the jurisdiction of the juvenile court is any person who is leading, or from any cause is in danger of leading, an idle, dissolute, lewd or immoral life.

On a motion to dismiss the information under Penal Code, section 995, neither the trial court nor this court is authorized to weigh the evidence and determine the conflicts, and our sole duty is to determine whether there was sufficient evidence presented to the committing magistrate which would establish defendant's guilt. People v. Cornette, 158 Cal.App.2d 724, 322 P.2d 1001, and cases cited. The court may not substitute its judgment as to the weight of the evidence for that of the magistrate conducting the preliminary examination and will not inquire into the sufficiency of the evidence if there is some evidence in support of the information. People v. Flanders, 140 Cal.App.2d 765, 768, 296 P.2d 13; People v. Bradley, 152 Cal.App.2d 527, 535, 314 P.2d 108. The purpose of the statute involved is to make criminal the commission of any act tending to cause minors to become dependent or delinquent. People v. Williams, 152 Cal.App.2d 641, 644, 313 P.2d 878; People v. Miller, 145 Cal.App.2d 473, 477, 302 P.2d 603, 607. In the latter case it is said that:

‘It is not required that the effect of the act complained of must have an absolutely certain and unmistakable tendency to cause the minor to lead an idle, dissolute, lewd or immoral life, and in determining whether the act in question would reasonably so affect the minor, the jury may apply the teachings of human experience.’

In People v. Deibert, 117 Cal.App.2d 410, 419, 256 P.2d 355, 360, the court said:

‘* * * the relatively comprehensive word ‘immoral’ is one which conveys concrete impressions to the ordinary person. It is in constant use in popular parlance and is found in every dictionary. When used in a legal sense in relation to statutes involving an exercise of the police power to promote the general welfare, it has an accepted definition of something that is inimical to good order and contra bonos mores.'

and 117 Cal.App.2d at pages 415–416, 256 P.2d at page 358:

‘By the provisions of section 702, Welfare and Institutions Code, any act or omission which ‘tends to cause or encourage’ a minor to become a delinquent is made criminal. A case is therefore established when the evidence proves acts or omissions on the part of the defendants which tend or cause or encourage the minors to lead an idle, dissolute, lewd or immoral life.'

In Bompensiero v. Superior Court, 44 Cal.2d 178, 183–184, 281 P.2d 250, 254, the court said:

‘Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344. An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. Lorenson v. Superior Court, 35 Cal.2d 49, 56, 59, 216 P.2d 859; cf. Greenberg v. Superior Court, 19 Cal.2d 319, 322, 121 P.2d 713.’

The evidence herein, considered in the light of the rules and principles herein set forth, impels us to conclude that there was reasonable and probable cause to hold the defendant to answer, and that the trial court erred in setting aside the information.

Respondent argues that there is no evidence establishing that Mrs. Enns and the doctor lived together as husband and wife, as charged in the information. However, the evidence, in our opinion, was sufficient to hold the defendant to answer to the offense of contributing to the delinquency of a minor and violation of section 702 of the Welfare and Institutions Code. Under the provisions of Penal Code, section 1009, the amendment of an information is permitted without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. Under said section the court in which an action is pending may order or permit an amendment of an information for any defect or insufficiency, at any stage of the proceeding, or if the defect in the information be one that cannot be remedied by amendment, the court may order a new information to be filed.

The order setting aside the information herein is reversed.

MUSSELL, Justice.

GRIFFIN, P. J., and COUGHLIN, J. pro tem., concur.

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