People v. Ely

California Court of Appeal

People v. Ely

338 P.2d 483, 170 Cal. App. 2d 301, 1959 Cal. App. LEXIS 2207

CourtCalifornia Court of Appeal

DecidedMay 11, 1959

DocketCrim. 3561

StatusPublished

Cited by4 cases

This text of 338 P.2d 483 (People v. Ely) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Ely, 338 P.2d 483, 170 Cal. App. 2d 301, 1959 Cal. App. LEXIS 2207 (Cal. Ct. App. 1959).

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Opinion

DRAPER, J.

Defendant appeals from judgment entered upon jury verdict finding him guilty of violation of Penal Code, section 288.

This case is a rarity, in that two persons who observed the occurrences from the window of an apartment, as well as the child involved, were witnesses for the prosecution. In view of these facts, appellant’s concession that he does not urge insufficiency of the evidence is somewhat superfluous.

Appellant asserts error in the failure of the trial court to instruct as to the test of circumstantial evidence (CALJIC 27). The intent of “arousing, appealing to, or gratifying the lust or passions or sexual desires” of defendant or the child is, of course, an essential element of the crime charged (Pen. Code, § 288). Appellant contends that, lacking any admission by him, his intent can be determined only by inferences drawn by the jury from his physical acts, and that such inferences constitute indirect or circumstantial evidence. In strict definition, he is correct. Thus, even though not requested, the instruction on circumstantial evidence should have been given. (People v. Yrigoyen, 45 Cal.2d 46, 49 [286 P.2d 1]; People v. Bender, 27 Cal.2d 164, 174 [163 P.2d 8].) However, in the light of the conduct of appellant testified to by the child and the two eyewitnesses, it is difficult to find prejudice to appellant in the omission of the instruction.

Appellant did not, as his brief attempts to suggest, admit all the physical acts charged against him and deny only his wrongful intent. Rather, he admitted only the equivocal acts of placing his arm around the child (his daughter) and kissing *303 her. He flatly denied each and all of the revolting acts testified to in detail by the three prosecution witnesses. It would serve no purpose to recite these acts here. As detailed in the transcript, they compel the conclusion that they evidenced the requisite lustful intent. The jury, accepting the direct evidence that these acts were performed, could not question their motivation. Thus there was no prejudice. (People v. Norton, 141 Cal.App.2d 790, 794 [297 P.2d 439]; People v. Andrus, 159 Cal.App.2d 673, 684 [324 P.2d 617].)

This conclusion is not weakened by the fact that a previous jury failed to agree. Rather, it seems clear that the disagreement could concern only the physical facts, and not the intent to be inferred from them once their existence was found.

Judgment affirmed.

Kaufman, P. J., and Dooling, J., concurred.

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DRAPER, J.

Defendant appeals from judgment entered upon jury verdict finding him guilty of violation of Penal Code, section 288.

This case is a rarity, in that two persons who observed the occurrences from the window of an apartment, as well as the child involved, were witnesses for the prosecution. In view of these facts, appellant’s concession that he does not urge insufficiency of the evidence is somewhat superfluous.

Appellant asserts error in the failure of the trial court to instruct as to the test of circumstantial evidence (CALJIC 27). The intent of “arousing, appealing to, or gratifying the lust or passions or sexual desires” of defendant or the child is, of course, an essential element of the crime charged (Pen. Code, § 288). Appellant contends that, lacking any admission by him, his intent can be determined only by inferences drawn by the jury from his physical acts, and that such inferences constitute indirect or circumstantial evidence. In strict definition, he is correct. Thus, even though not requested, the instruction on circumstantial evidence should have been given. (People v. Yrigoyen, 45 Cal.2d 46, 49 [286 P.2d 1]; People v. Bender, 27 Cal.2d 164, 174 [163 P.2d 8].) However, in the light of the conduct of appellant testified to by the child and the two eyewitnesses, it is difficult to find prejudice to appellant in the omission of the instruction.

Appellant did not, as his brief attempts to suggest, admit all the physical acts charged against him and deny only his wrongful intent. Rather, he admitted only the equivocal acts of placing his arm around the child (his daughter) and kissing *303 her. He flatly denied each and all of the revolting acts testified to in detail by the three prosecution witnesses. It would serve no purpose to recite these acts here. As detailed in the transcript, they compel the conclusion that they evidenced the requisite lustful intent. The jury, accepting the direct evidence that these acts were performed, could not question their motivation. Thus there was no prejudice. (People v. Norton, 141 Cal.App.2d 790, 794 [297 P.2d 439]; People v. Andrus, 159 Cal.App.2d 673, 684 [324 P.2d 617].)

This conclusion is not weakened by the fact that a previous jury failed to agree. Rather, it seems clear that the disagreement could concern only the physical facts, and not the intent to be inferred from them once their existence was found.

Judgment affirmed.

Kaufman, P. J., and Dooling, J., concurred.

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338 P.2d 483, 170 Cal. App. 2d 301, 1959 Cal. App. LEXIS 2207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ely-calctapp-1959.

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