People v. Bittick, Cr. 6703

• Court: California Court of Appeals
• Writing for the Court: VALLEE; SHINN, P. J., and FORD
• Citation: 2 Cal.Rptr. 378,177 Cal.App.2d 479
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Eugene BITTICK, Defendant and Appellant.
• Docket Number: Cr. 6703
• Decision Date: 27 January 1960

Page 378

2 Cal.Rptr. 378 177 Cal.App.2d 479 PEOPLE of the State of California, Plaintiff and Respondent,
v.
Marvin Eugene BITTICK, Defendant and Appellant. Cr. 6703. District Court of Appeal, Second District, Division 3, California. Jan. 27, 1960.

Page 379

[177 Cal.App.2d 480] Calabro, Calabro & Calabro and Alfred A. Calabro, Glendale, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for respondent.

[177 Cal.App.2d 481] VALLEE, Justice.

By information No. 202793 defendant was accused of having, on April 4, 1958, committed a lewd and lascivious act upon the body of Sharron, a child 6 years old. By information No. 202794 he was accused of having, on April 22, 1958, committed a lewd and lascivious act upon the body of Catherine

Page 380

Jane, a child 11 years old. On motion of the district attorney the informations were consolidated for trial. In a nonjury trial defendant was found not guilty of the offense charged in No. 202793, and guilty of the offense charged in No. 202794. His motion in arrest of judgment and for a new trial were denied; proceedings were suspended and he was granted probation for a 10-year term.

Defendant appeals from 'the judgment of conviction,' the order denying his motion in arrest of judgment, the order denying a new trial, the order granting probation, and an order denying his motion to correct a minute order. No judgment was pronounced and consequently there was no 'judgment of conviction,' and that appeal must be dismissed. An order denying a motion in arrest of judgment is not appealable (People v. McGee, 31 Cal.2d 229, 232, 187 P.2d 706) and that appeal must be dismissed. The ruling is reviewable on appeal from the judgment. People v. Williams, 184 Cal. 590, 591, 194 P. 1019. The order granting probation is deemed to be a final judgment for the purpose of appeal. Pen.Code, § 1237, subd. 1.

No purpose would be served in relating the sordid details with respect to defendant's conduct with Catherine Jane. Suffice it to say that her testimony was that defendant, on April 22, 1958, wilfully and lewdly committed lewd and lascivious acts upon her body with the intent of arousing, appealing to, and gratifying his lust and passions. Pen.Code, § 288. Defendant's argument is largely to the effect that the trial court should have believed his denials of any misconduct and should have disbelieved Catherine Jane. These are matters with which we have no concern. The trial judge's determination of whom to believe is final. The evidence supports the finding of guilt.

As stated, on motion of the district attorney the court consolidated Nos. 202793 and 202794 for trial. Defendant asserts error. There was no error. An accusatory pleading may charge two or more different offenses of the same class of crimes, and if two or more accusatory pleadings are filed in such cases the court may order them to be consolidated. Pen.Code, § 954. Nos. 202793 and 202794 charged offenses of the [177 Cal.App.2d 482] same class of crimes. Whether a consolidation shall be ordered rests in the sound discretion of the trial judge. It is only when an abuse of discretion is shown that his ruling will be disturbed on review. No abuse of discretion is shown at bar. On the contrary, the order of consolidation appears to have been in the interest of justice. People v. Winston, 46 Cal.2d 151, 158, 293 P.2d 40; People v. Van De Wouwer, 91 Cal.App.2d 633, 639-640, 205 P.2d 693.

It is asserted the court erred in admitting in evidence, over objection, two incidents between defendant and Catherine Jane other than the one charged in the information. One incident was that about a year before April 22, 1958 defendant told Catherine Jane she was a nice girl, sat down on a bench, said to her 'Come here,' she went over, he picked her up and started bouncing her up and down in his lap...