People v. Downer

• Decision Date: 04 June 1962
• Docket Number: Cr. 7022
• Citation: 372 P.2d 107,57 Cal.2d 800,22 Cal.Rptr. 347
• Court: California Supreme Court
• Parties: , 372 P.2d 107 The PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Robert DOWNER, Defendant and Appellant.

Page 347

22 Cal.Rptr. 347

57 Cal.2d 800, 372 P.2d 107

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Robert DOWNER, Defendant and Appellant.

Cr. 7022.

Supreme Court of California, In Bank.

June 4, 1962.

Rehearing Denied July 3, 1962.

William P. Callahan, San Francisco, and Kenneth G. Wilshire, Lebanon, Or., for defendant and appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and John F. Foran, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

Defendant appeals from a judgment of guilty of the crime of attempted incest, after trial before a jury.

Viewed in the light most favorable to the People, the record discloses the following facts:

Defendant, his daughter, and his son lived in a two-bedroom trailer house outside of Lewiston, Trinity County, California. The trailer was composed of one back bedroom separated from another bedroom by a bathroom. The second bedroom contained two bunk beds, the lower of which was occupied by defendant and the upper by his son; defendant's daughter, Bonita, occupied the back bedroom.

December 5, 1959, about 10 p. m., defendant went into his daughter's bedroom after she had retired. He sat on her bed, awakened her, and said he wanted to talk with her. She knew the reason he was there, for he had been coming into her bedroom for the same purpose since 1957. At the time he entered the bedroom he was wearing only his underwear. She struggled against the advances of her father for about two hours, that is, for the entire time he was in her room. During the struggle he removed the bottom of her pajamas, tearing them as he did so. He then removed his underwear, got on top of her, and said that he 'wanted some relief.' He had been perpetrating these acts upon his daughter since 1957 and had always used the same words to the effect that he 'wanted relief.' He stuck his daughter several times with a knife and threatened her if she did not lie still.

After defendant assumed his position on her, there was physical contact between his penis and the girl's vaginal area. He put his penis, which she described as 'more or less hard,' in only part of the way, to the extent of about an inch or an inch and a half, and made motions to some extent during the period of this contact.

Gary Downer, defendant's 16-year-old son, who slept in the bunk bed in the other bedroom, had observed his father go into his sister's bedroom and about 15 minutes later heard her begin crying and moaning. This continued for about 45 minutes to an hour. He also heard parts of conversations between his father and his sister, in which the girl said, 'No, no,' 'Who do you think you are,' 'You think you are a privileged character,' 'You know it's wrong,' and remarks of a similar nature.

On December 16, 1959, defendant again entered his daughter's bedroom after she had gone to bed. She knew what he wanted and struggled against his advances. Defendant stated that he 'just wanted to get some relief.' He was again wearing only his underwear, and the girl had retired wearing a pair of pants and a blouse. Defendant tore off her pants and blouse during the struggle in which she tried to resist his advances. During the struggle she suffered a bloody nose, and defendant twisted her arms. A pillowcase and sheet stained with blood from the girl's nose were recovered from the trailer on December 17. On the night of the 16th defendant did not accomplish any type of sexual contact with his daughter, but he did make an effort to do so. He finally became angry and left.

On this same evening the son again observed his father go into the girl's bedroom, and about 15 minutes later heard her crying and moaning. He heard this crying and moaning continue for 45 minutes to an hour. He also stated that activities of the type that took place on the 5th and 16th had gone on since about a month after he had moved in with his father and sister.

Defendant had perpetrated on his daughter acts similar to those that occurred on December 5 about once a month or once every two months since she had come to live with him. There was evidence of a conversation on December 5 between defendant and his daughter in which he told her that if she did not lie still he would put it 'clear in,' and on certain occasions he has threatened to stick her with a knife if she did not lie still.

Defendant contends: First. That the evidence is insufficient to support his conviction of attempted incest.

This contention is devoid of merit. These rules are here applicable:

(1) The crime of attempted incest is complete if the evidence is sufficient to show the concurrence of (a) the intent to commit such a crime, together with (b) direct, though ineffectual, acts done toward its commission. (Cf. People v. Camodeca, 52 Cal.2d 142, 145(1), 338 P.2d 903; People v. Gallardo, 41 Cal.2d 57, 66(12), 257 P.2d 29; People v. Thomas, 164 Cal.App.2d 571, 574(1), 331 P.2d 82.)

(2) To constitute attempted incest, the defendant's conduct must go beyond mere preparation and must reach far enough toward accomplishment of the desired result to amount to commencement of the consummation. (Cf. People v. Franquelin, 109 Cal.App.2d 777, 784(5), 241 P.2d 651.)

(3) Whenever the design of a person to commit a crime is clearly shown, slight acts done in furtherance thereof will constitute an attempt. (People v. Thomas, supra, 164 Cal.App.2d at 574(4), 331 P.2d 82.)

(4) In order to accomplish the crime of attempted incest, it is not necessary that there be any penetration. , (People v. Gleason, 99 Cal. 359, 33 P. 1111; cf. People v. Esposti, 82 Cal.App.2d 76, 78(2), 185 P.2d 866; People v. Thomas, supra, 164 Cal.App.2d at 574(2), 331 P.2d 82.)

Applying the foregoing facts to the above rules, it is apparent that defendant attempted to commit incest.

The record discloses that defendant had been engaged in sexual relations with his daughter since 1957. It was his practice to come into her bedroom, dressed only in his underwear, and state that he wanted some 'relier' just before he would perpetrate the act upon her.

On December 16, 1959, defendant, dressed only in his underwear, came into his daughter's bedroom after she had gone to bed, and stated that he wanted some 'relief.' She knew what he wanted and began struggling against his sexual advances. During the struggle defendant gave her a bloody nose, twisted her arm, and tore her clothing off.

Clearly the foregoing facts establish that defendant was guilty of attempted incest.

People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913, and People v. Buffum, 40 Cal.2d 709, 256 P.2d 317, relied on by defendant, are factually distinguishable from the present case and state only a general rule with respect to attempts.

People v. Parker, 74 Cal.App. 540, 241 P. 401, also relied on by defendant, was a case involving a conviction for a violation of Penal Code section 288, lewd and lascivious acts perpetrated on a child, prior to the 1937 amendment. It was contended that the defendant's acts showed either rape, intent to commit rape, or assault with intent to commit rape, and that consequently he could not be held for a violation of section 288 as it then read. ¹

In rejecting the argument, the court simply held that the acts of the defendant in kissing and rubbing the victim could be separated from the other acts which he perpetrated on the child; that the question was one of fact for the jury; and that it was not impossible for the jury to conclude that he formed the intent to rape after he had committed the crime denounced by section 288 of the Penal Code. The court held that the finding of the jury and conviction for violation of section 288 of the Penal Code could be upheld despite the fact that the defendant's other acts might have been sufficient for the jury to conclude that he was guilty of the other crimes as well.

The court did not say that the subsequent acts of the defendant were insufficient in and of themselves to support a conviction for rape, attempted rape, or assault with intent to commit rape.

People v. Rossi, 37 Cal.App. 778, 174 P. 916, also relied on by defendant, was a case likewise involving a conviction for violation of section 288 of the Penal Code prior to the 1937 amendment. The defendant was discovered with a small girl on his lap with his hand up her dress and the girl saying, 'It hurts.' When the activities of the defendant were interrupted the girl escaped from his grasp, at which time a witness observed that the defendant's private parts were out of his trousers and exposed. The defendant argued that the crime was attempted rape and that therefore he could not be convicted under the provisions of section 288 of the Penal Code as it then read.

On appeal, the court held there was no evidence that the defendant had sexual intercourse with the child, and in fact the girl testified that he did not. She also testified that when she made the statement, 'It hurts,' she was referring to the defendant's hugging of her body and pressing her. The court held that there was ample evidence of lewdness and that if it were so clear that no other conclusion was possible but that the defendant did commit acts denounced by other sections of the Penal Code, then it might agree with the defendant's contention, but that the evidence warranted the verdict, and the reviewing court was not at liberty to interfere with the determination of the trier of fact.

In the present case, defendant's conduct in seeking to accomplish his objective went well past the stage of 'mere preparation.' The fact that defendant's efforts were frustrated by his daughter's resistance does not relieve him from responsibility for those acts which had already been committed and which the jury determined were sufficient to constitute the crime of attempted incest. (Cf. People v. Robinson, 180 Cal.App.2d 745, 750(3), (4), 4 Cal.Rptr. 679.)

Second. That the superior court lacked...