People v. Costa, Cr. 1204

• Citation: 297 P.2d 667,141 Cal.App.2d 795
• Decision Date: 23 May 1956
• Docket Number: Cr. 1204
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny COSTA, Defendant and Appellant.
• Court: California Court of Appeals

Page 667

297 P.2d 667

141 Cal.App.2d 795

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny COSTA, Defendant and Appellant.

Cr. 1204.

District Court of Appeal, Fourth District, California.

May 23, 1956.

Rehearing Denied June 4, 1956.

Hearing Denied June 20, 1956.

J. M. Lopes, Visalia, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., for respondent.

GRIFFIN, Justice.

Defendant and appellant, aged 18 years, was charged by information, in count one, with the crime of committing statutory rape on a girl 13 years of age. In the second count he was charged with violating section 288 of the Penal Code by performing certain lewd and lascivious acts upon her body. A jury trial resulted in a verdict of not guilty on the first count and guilty on the second count. Conditional probation was granted for three years providing defendant served five months in the county jail. He appeals from the orders denying a new trial, an oral motion in arrest of judgment, motion to set aside count 2 of the information and judgment or order granting probation under section 1237, subdivision 1 of the Penal Code.

On July 18, 1955, the minor child, Susan, resided in Visalia with her parents who, that evening, were at a show. About 9:30 p. m. she, accompanied by a 13 year old girl from Whittier named Judy, met by prearrangement defendant and five other boys, all under 19 years of age, and went with them in a pick-up truck to a somewhat secluded place near Visalia. Their truck, driven by one of the boys, stopped. Defendant was seated in the front seat with him. The girls were in the back portion of the truck. Susan and a boy named Glenn walked down the road and in 15 minutes returned. Apparently they had been arguing as to whether Susan was a virgin, and this fact was discussed in the presence of all. Defendant stated he 'didn't take that from any woman or any girl', and that he was going to 'make her'. There is a conflict in their stories as to whether force was used by defendant in the acts that followed. They repaired to a secluded place near the river bank and the girl continued to remark of her virginity. Apparently defendant made overtures toward her in an endeavor to have an act of sexual intercourse with her and he stated that she would only allow him to place his finger in her vagina, which he did do. Thereafter, he lifted her over a fence and carried her to another spot, took off one shoe so one leg of her pedal pushers could be removed. He then placed himself on top of her. The girl testified there was a partial penetration of her private parts by his. Defendant contended at the trial that there was no penetration but he was satisfied by placing his private parts next to hers. Thereafter the group left and returned to the girl's home. She discovered that her parents had returned home so she went to the home of a neighbor in whom she had confidence and told her of the affair. The neighbor noticed the dirty condition of her clothing, hair and her general physical condition and mental disturbance, took her to the hospital and called the sheriff. A doctor examined her and found fresh spermatic fluid in the pubic hair and in the vagina and found a short fresh bleeding hymenal laceration between one-eighth and one-fourth inch in length.

The sheriff's officers apprehended defendant at his home. Later he told about the occasion, signed a statement to this effect, admitted partial penetration and that he inserted his finger in Susan's vagina. The evidence is sufficient to show the commission of both offenses charged. People v. Greer, 30 Cal.2d 589, 184 P.2d 512.

It appears that defendant was originally charged in a complaint before the committing magistrate with the crime of statutory rape and was held to answer on that charge. Subsequently, the district attorney added the additional count to the information based upon the evidence at the preliminary hearing. Defendant now claims that the trial court erred in denying his motion to set aside that count of the information on the ground that there was no sufficient evidence before the committing magistrate of such added offense. There is no reporter's transcript of the preliminary hearing before us. No relief was sought under section 999a of the Penal Code. From the record before us the proceedings appear to be proper. Sec. 739, Penal Code; People v. Martin, 128 Cal.App.2d 361, 275 P.2d 635. Since there is no direct appeal from the order denying the motion to set aside the information, it can only be reviewed on an appeal from the judgment. Accordingly, the attempted appeal from such order must be dismissed. People v. Egan, 73 Cal.App.2d 894, 167 P.2d 766. The attempted appeal from the order denying defendant's oral motion in arrest of judgment on the same ground must likewise be dismissed. People v. McGee, 31 Cal.2d 229, 187 P.2d 706.

The next claim is that the prosecuting attorney and the trial court were guilty of prejudicial misconduct during the argument of the case and in instructing the jury. It appears that several of the boys on the trip testified at the trial. Counsel for defendant on cross-examination of the boys first brought out the fact that they had each been charged with and plead guilty to contributing to the delinquency of a minor child but had not been sentenced at the time of this trial. In his argument to the jury he bore upon the fact that the prosecution showed partiality in charging this defendant with the crimes indicated and not also charging him with that lesser offense. He argued that under the law those other boys were...