People v. La Fontaine

• Decision Date: 28 March 1978
• Docket Number: Cr. 30732
• Citation: 79 Cal.App.3d 176,144 Cal.Rptr. 729
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Norman LA FONTAINE, Defendant and Appellant.

Page 729

144 Cal.Rptr. 729

79 Cal.App.3d 176

The PEOPLE, Plaintiff and Respondent, v. Joseph Norman LA FONTAINE, Defendant and Appellant.

Cr. 30732.

Court of Appeal, Second District, Division 4, California.

March 28, 1978.

Sterling & Countryman by Byron E. Countryman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Roger W. Boren and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

This is an appeal by defendant from a conviction of the crimes of (1) child molestation, in violation of Penal Code section 647a, and (2) an attempted lewd or lascivious act upon the body of a child under 14 years of age, in violation of Penal Code sections 664 and 288. The two offenses were alleged in a two-count information which also alleged that defendant had been convicted of two prior offenses the crime of a lewd act with a child, committed on February 25, 1959, a felony, and a misdemeanor offense of violating Penal Code section 647a on April 9, 1975. Defendant entered a plea of not guilty and denied the allegations of the two prior convictions.

At the beginning of the trial and before a jury was selected, the court granted the People's motion to strike the allegations of the two prior criminal convictions. The jury found defendant guilty as charged in the two counts. Defendant was sentenced to state prison for the term prescribed by law on count II the offense of an attempted lewd or lascivious act upon a child. The count suspended the imposition of sentence on count I the Penal Code section 647a violation and ordered that count merged into count II, to be dismissed upon completion of sentence on count II.

I The Factual Background

In the middle of July 1976, Peter Lee Murillo, 13 years of age, had left his home in Montalvo on a weekday morning to visit a friend. After a 20-minute visit, he began walking home alone. He sought to hitchhike a ride. At a location on the road near a place called the Trailer Rental Center, a car pulled over and the door on the passenger's side of the car was opened. The driver asked Peter where he was going and Peter replied that he was on his way to the K-Mart near where he lived. Peter then got into the car. Peter identified defendant as the driver of the car.

While they were driving along, there was at first innocuous conversation between the driver and Peter. When the car reached a "Big T" supermarket, defendant stopped the car on the side of the road and asked Peter if he wanted to make an easy five or ten dollars. Peter asked defendant how he could make this money. Defendant replied, "I give you a blow job." Peter said no, opened the car door, got out of the car and proceeded to his home. At the time of this latter conversation between defendant and Peter, defendant had one hand on the steering wheel of the vehicle and the other hand on the seat approximately six or seven inches from Peter's leg. At no time did defendant touch any portion of Peter's body or make any movement or motion toward Peter's body.

Defendant makes the following contentions on this appeal: (1) that defendant's conduct did not, as a matter of law, constitute an attempt to commit a violation of Penal Code section 288; (2) that defendant could not be convicted of both a violation of Penal Code section 647a and an attempt to violate Penal Code section 288, since a 647a violation is a lesser and necessarily included offense to a violation of section 288; (3) that defendant was denied a fair trial by virtue of prosecutorial and judicial misconduct; and (4) that the evidence upon which defendant was convicted is inherently improbable.

II Defendant's Conduct Insufficient To Constitute an Attempted Violation of Penal Code Section 288

Defendant asserts as a matter of law that his conduct, which consisted solely of a verbal communication with Peter, the victim, is insufficient to constitute the criminal offense of an attempt to violate Penal Code section 288. Penal Code section 288 creates the felony offense for "(a)ny person who shall willfully and lewdly commit any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child." Penal Code section 664 defines the punishment for attempts to commit any crime but does not itself define the crime of attempt.

It has remained for the decisional law to define the crime of attempt. The law is clear that the crime of attempt requires that a defendant's acts or conduct go beyond acts of preparation to commit a crime. The basic problem is that of determining whether a defendant's acts or conduct have proceeded beyond the preparation stage in order to constitute the crime of attempt. In People v. Anderson (1934) 1 Cal.2d 687, 37 P.2d 67, the court explained the difference between the preparation, looking toward the commission of an offense, and the actual attempt to commit it. The court stated: "The preparation consists in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are made, and must be manifested by acts which would end in the consummation of the particular offense unless frustrated by extraneous circumstances." (Anderson, supra, 1 Cal.2d 687, 690, 37 P.2d 67, 68.)

In People v. Buffum (1953) 40 Cal.2d 709, 718, 256 P.2d 317, 321, the court gave further elucidation to the principle of the difference between acts of preparation and acts constituting an "attempt" by stating: "This court has held that two elements are necessary to establish an attempt, namely, a specific intent to commit a crime and a 'direct' ineffectual act done towards its commission." The Buffum court also stated that the crime of an attempt requires that there be "some appreciable fragment of the crime committed." (Buffum, supra, 40 Cal.2d 709, 718, 256 P.2d 317, 321.)

The issue in Buffum relating to the question of whether the crime of an attempt had been committed was whether defendants had committed sufficient acts in California to constitute the offense of an attempt to commit an abortion. The acts of defendants alleged to constitute an attempt consisted of defendants' making arrangements for transportation and then taking women from California to Mexico for the purpose of performing abortions upon them in that country. The Buffum court concluded that "such conduct is merely preparatory and does not constitute a direct, unequivocal act done toward the commission of the offense . . . ." (Buffum, supra, 40 Cal.2d 709, 718, 256 P.2d 317, 321.)

In People v. Holbrook (1955) 45 Cal.2d 228, 288 P.2d 1, a chiropractor was charged with the offense of attempted abortion. Here the defendant in his office discussed performing an abortion upon a female undercover policewoman and a male officer who represented himself as her husband. The defendant stated a price of $150 and received $140 from the couple. Defendant then advised the woman to undress to prepare for the abortion. At this time the defendant was arrested. These facts were considered by the Holbrook court to be insufficient to constitute the crime of attempted abortion. In so holding, the court remarked: "The evidence is not sufficient to support the conviction under the second count (attempted abortion) since the record relating to the asserted attempted abortion upon the policewoman shows merely preparation and no direct, unequivocal act toward the commission of an abortion." (Holbrook, supra, 45 Cal.2d 228, 232, 288 P.2d 1, 3.)

Are acts of solicitation to be considered any different from the acts and conduct held to be acts of preparation and, hence, insufficient to constitute the crime of attempt, such as those found in Anderson, Buffum and Holbrook? In People v. Adami (1973) 36 Cal.App.3d 452, 111 Cal.Rptr. 544, the court considered the question of the sufficiency of acts of solicitation to constitute the offense of attempted murder. In Adami, as in Holbrook, the defendant dealt with an undercover police officer. The police officer posed as a would-be assassin and defendant solicited him to kill defendant's wife. The defendant gave the would-be assassin a down payment, a photograph of the wife, and a detailed written description of her.

The Adami court held that these acts on the defendant's part constituted acts of preparation and were not sufficient to constitute the crime of attempted murder. "The weight of authority is that solicitation alone is not an attempt, and if solicitation alone is not an attempt, and if solicitation is punishable it must be so charged in the indictment rather than as an attempt." (Adami, supra, 36 Cal.App.3d 452, 457, 111 Cal.Rptr. 544, 547.) The Adami court emphasized that "(i)n the present case no appreciable fragment of the crime charged was accomplished. Although there is present the element that defendant had the specific intent to commit murder, there is no evidence that he committed a direct unequivocal act to that end. . . . The acts on defendant's part consisted solely of solicitation or merely preparation." (Id. at 457, 111 Cal.Rptr. 544, 547.)

The Adami court points out that a legal scholar has suggested that solicitation under certain circumstances should be considered as constituting a criminal attempt. (See Perkins, Criminal Attempt and Related Problems (1955) 2 U.C.L.A.L.Rev. 319, 351-353.) The People in the case at bench urge that we adopt the suggestion of Perkins and hold that acts of solicitation such as occurred in the case at bench amount to the offense of an attempt to violate Penal Code section 288. The suggestion made by Perkins is that, (1) if the solicitor intends to take an active part in the...