People v. Stampher

336 P.2d 207, 168 Cal. App. 2d 579, 1959 Cal. App. LEXIS 2497

• Court: California Court of Appeal
• Decided: March 11, 1959
• Docket: Crim. 2871
• Status: Published

Opinions

SCHOTTKY, J.

This is an appeal from a judgment of conviction of violation of section 288 of the Penal Code and from an order denying a new trial. Trial was had without a jury.

Appellant was accused by information of committing lewd and lascivious acts upon the body of the prosecutrix, his 12-year-old daughter. The prosecutrix testified that on or about September 30, 1957, around 4:10 p.m. she came home from school and went into the bathroom. Appellant followed her into the bathroom and asked her to engage in an act of sexual intercourse. The prosecutrix said no, but the appellant pulled her panties down around her ankles, exposed himself and penetrated her privates with his penis while the prosecutrix was seated sideways on the toilet seat and leaning back against the wall. The prosecutrix also testified that appellant had committed similar acts on her during the preceding two years.

Appellant made a statement to the police in which he admitted that on two occasions he had awakened to find the prosecutrix in bed with him and that he was kissing her and otherwise engaged in what might loosely be termed sex play. Appellant denied ever having intercourse with his daughter and testified at the trial that the above portions of the statement made to the police referred to dreams which he had had.

Appellant also wrote letters to the prosecutrix while she was being kept at the Juvenile Detention Home in which he referred to her as “love bug” and made other statements which led the court to comment that some of these were more like letters to a sweetheart than to a daughter.

Appellant’s first contention is that he was charged with violation of section 288 of the Penal Code and that the only crime that the evidence tended to prove was rape. There is no merit in this contention, for as stated by this court in People v. Paris, 59 Cal.App.2d 699, at page 702 [139 P.2d ], “While a crime may be committed under section 288 without its amounting to rape, it seems impossible that rape may be committed upon a child under the age of fourteen years without thereby violating the provisions of section 288.” The testimony of the prosecutrix, as hereinbefore set forth, is ample to support a conviction of lewd and lascivious conduct.

Appellant next contends that the entire proof in this case was the uncorroborated testimony of the 12-year-old prosecutrix. In such a ease it is urged “the reviewing Court should scrutinize with discriminating care the testimony given by the prosecuting witness. ’ ’ A sufficient answer to this contention is that corroboration of the prosecuting witness is not required to sustain a conviction for violation of section 288. (People v. Westek, 31 Cal.2d 469, 473 [190 P.2d 9].) Furthermore, the statement made by appellant to the police and the letters he wrote to the prosecutrix while she was at the Juvenile Detention Home tend to corroborate her testimony.

Appellant contends further that the testimony of the prosecutrix was inherently improbable and that the act could not have happened as described by her. The trial court viewed the scene of the crime and concluded that the act could have occurred as described. The court also found that the prosecutrix told a straightforward story and that it could not discredit her story. Appellant’s argument is merely one as to the weight of the evidence, and it was for the trial court to decide the weight to which the testimony of the prosecutrix was entitled.

Appellant contends that the trial judge was guilty of misconduct in limiting his examination of certain evidence at the trial. There is no merit in this contention. It appears in the record that the court did limit appellant’s examination, but that this was done when the appellant’s examination wont into matters which were either immaterial or which had been adequately presented to the court for consideration. There is no contention that the appellant was prevented from introducing any evidence, by testimony or otherwise, which would have had any bearing on the outcome of the case.

Appellant next contends that the court was “inconsistent.” This appears to be merely an attempt on the part of appellant to argue with the opinion of the court. It is not claimed that there was a variance between the findings as stated in the opinion and the proof, nor would the record support such a claim.

We are satisfied that the appellant received a fair trial, that no prejudicial errors were committed, and that the evidence amply supports the judgment of conviction.

The judgment and order are affirmed.

Van Dyke, P. J., concurred.