People v. Loignon, Cr. 5979

• Decision Date: 13 May 1958
• Docket Number: 5980,Cr. 5979
• Citation: 325 P.2d 541,160 Cal.App.2d 412
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George Edward LOIGNON, Defendant and Appellant (two cases).

Page 541

325 P.2d 541

160 Cal.App.2d 412

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Edward LOIGNON, Defendant and Appellant (two cases).

Cr. 5979, 5980.

District Court of Appeal, Second District, Division 2, California.

May 13, 1958.

Samuel C. McMorris, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Ray R. Goldie, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of violating Penal Code sections 288a ¹ and 288 ² and attempted kidnaping. He was sentenced to the penitentiary on each count. All of these offenses were committed on August 17, 1956. A conviction in 1948 of child stealing was alleged and admitted. Defendant was granted probation on that charge, one of the conditions being that he was 'not to associate with minors unless in the presence of responsible adults.' Upon conviction in the current case defendant's probation was revoked and he was sentenced to the state penitentiary on that charge; the sentence, however, was to run concurrently with those mentioned above. Defendant has appealed from the judgment and sentence in each case.

Appeal No. 5980.

On the evening of August 17, 1956, Stanley and his mother were at his father's store. At approximately 8:00 o'clock Stanley was skatuing back and forth to the corner from the front of the store. Defendant, whose car was parked across the street, engaged Stanley, who was nearly six, in conversation and invited him to go for a ride, which invitation he accepted. Stanley suggested that they go around the block; defendant, however, took him down to the railway tracks near the Stanford School. Defendant thereupon took Stanley's pants down to his ankles and had him lie down on the seat. He then committed an act of copulation on Stanley. Defendant thereafter had Stanley turn over on his stomach. He then put his finger in his 'bottom,' and also chewed on his ear and spanked his leg. Stanley told defendant that he wanted to go home to his mother. In response defendant said to him several times that he would take him in just a minute, but continued to commit these acts. Defendant finally drove Stanley back to where his car had been parked and let Stanley out. He skated back to his mother who was on the corner looking for him. He was crying and told her what had happened. The boy knew that the car he had been in was a Plymouth. Stanley's mother called the police, who searched defendant's car and found some rocks in the front seat, which appeared to his mother to be the same rocks that had fallen out of Stanley's pockets the night before when she was undressing him and which had been put back into his pockets.

Between 4:30 and 5:00 o'clock on the afternoon in question, defendant parked his car near Lincoln School in Lynwood. Ricky, seven years of age, was walking back to school. Defendant called Ricky and asked him if he wanted to take a ride. Ricky declined, explaining that it was against the law to ride with strangers and that his mother would not like it. Defendant said, 'Come on and get in the car.' Ricky replied, 'No, I can't.' Defendant opened the door and pulled him in. Ricky fought with defendant a little. Defendant told him to quiet down; Ricky did quiet down but got ready to open the door. When defendant started the motor Ricky opened the door, jumped out of the car, and ran. He turned back, however, to look at the license plate and remembered that the number was LKU 707. He also observed that 'part of the license plate frame was hanging over.' Ricky told the coach at school what had happened, and the coach took him home. His mother wrote down the license number and called the police.

Two other boys saw defendant and Ricky in the car. They took the license number, went back to their home and also called the police.

Ricky saw defendant that night at the Lynwood police station and recognized him as being the man that pulled him into the car.

Defendant's defense was that of an alibi. He attempted to account for his time from approximately 1:45 to 9:30 on the afternoon and evening in question. He did not, however, take the witness stand in his own behalf.

Although the public defender had been appointed to represent the defendant, when his case was called for trial he stated that he no longer desired the services of that office and that he wished to represent himself. He informed the court that he felt that under the circumstances he could present the case better than a lawyer. The court fully explained to him the difficulties of representing himself and earnestly recommended that he not dispense with the services of counsel. The defendant's request, however, was finally granted.

Defendant now contends that the court erred in accepting his waiver of the right to counsel. He asserts that such waiver was 'incompetent, contrary to law, and a denial of due process.'

The constitutional right to be represented by counsel (Calif.Const. art. I, sec. 13) is one that may be waived. In re Connor, 16 Cal.2d 701, 709, 108 P.2d 10. The waiver, however, to be effective must be made 'competently, intelligently, and completely.' In re Jingles, 27 Cal.2d 496, 498, 165 P.2d 12, 14. Whether a waiver in a particular case meets this standard is largely a matter for the determination of the trial court, and its decision will not be disturbed on appeal in the absence of an abuse of discretion. People v. Rogers, 150 Cal.App.2d 403, 416, 309 P.2d 949.

In the instant case, defendant had been an accountant. He had had previous experience in the criminal courts. He indicated he had given considerable thought to the idea of discharging his counsel and representing himself and that his decision was a considered one. The trial court fully explained to him the problem and difficulty of acting as his own attorney and admonished him not to dispense with the assistance of the public defender. Defendant, however, persisted in his view that in the circumstances of this case he could present it better than a lawyer. It is thus clear that the trial judge was abundantly justified in accepting defendant's waiver of the right to counsel, and such acceptance was in accordance with the established law and not a denial of due process.

Defendant's second contention is that the court erred in admitting the testimony of incompetent witnesses. Relying on section 1880, Code of Civil Procedure, he argues that the children who testified were not competent witnesses. That section provides that children under ten years of age cannot be witnesses if they 'appear incapable of receiving just impressions of the facts with respect to which they are examined or of relating them truly.' That section imposes upon the trial judge a duty to determine whether a child under ten is a competent witness. If a child possesses sufficient intelligence, understanding and ability to receive and fairly accurately recount his impressions and he has an understanding of the nature of an oath and a moral sensibility to realize that he should tell the truth and that he is likely to be punished for a falsehood, he is competent to testify. People v. Trolinder, 121 Cal.App.2d 819, 823, 264 P.2d 601; People v. Lamb, 121 Cal.App.2d 838, 846, 264 P.2d 126; People v. Goff, 100 Cal.App.2d 166, 170, 223 P.2d 27. The competency of a child as a witness is a matter resting largely in the sound discretion of the trial judge and, in the absence of a showing of an abuse of discretion, his decision will not be distubed on appeal. People v. Ash, 70 Cal.App.2d 583, 585, 161 P.2d 415; People v. Ernst, 121 Cal.App.2d 287, 290, 263 P.2d 114.

The trial judge conducted a voir dire examination of Stanley and Ricky regarding their church and school attendance, obligation to tell the truth and the consequences of telling an untruth before they were sworn. Stanley told the court that he was six years old and was in the first grade; that his Sunday school teacher had taught him what it means to tell the truth, and that if he did not tell the truth he might be punished. Ricky stated that he was 7 1/2 years old, in the second grade, and that he realized he might be punished if he told a lie. In the circumstances, the trial court properly exercised its discretion in permitting these children to testify. People v. Norred, 110 Cal.App.2d 492, 495, 243 P.2d 126.

Furthermore, the trial court inquired of the defendant in each instance whether he was 'satisfied with the qualifications of the witnesses' and defendant indicated that he was.

Defendant's third contention is that the language of section 288 of the Penal Code is 'too vague, indefinite and uncertain to constitute valid criminal legislation.' He argues that the words 'lewdly,' 'lewd' and 'lascivious' in the section (see text of section in footnote 2) render it too vague to meet the requirements of due process. The section was held constitutional, however, more than thirty years ago in People v. Maine, 93 Cal.App. 141, 269 P. 194. The section 'was enacted to protect children from the lustful advances and tamperings of callous and unscrupulous persons as well as from the assaults of depraved unfortunates.' People v. Hobbs, 109 Cal.App.2d 189, 192, 240 P.2d 411, 414. A similar attack was made on section 702 of the Welfare and Institutions Code on the ground that the words 'dissolute' and 'immoral' contained in the statute were not sufficiently definite to inform those subject to its sanctions what type of conduct was thereby denounced. This court, in People v. Deibert, 117 Cal.App.2d 410, 256 P.2d 355, held that this attack was not valid. At pages 418-419 of 117 Cal.App.2d, at page 360 of 256 P.2d we stated: 'Where a statute contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided, a court will be slow to say that such a statute is too indefinite to be enforced. The complexities of the social problems dealt with...