People v. Mansell
Decision Date | 17 June 1964 |
Docket Number | Cr. 9078 |
Citation | 227 Cal.App.2d 842,39 Cal.Rptr. 187 |
Parties | The PEOPLE, Plaintiff and Appellant, v. Charley Orvil MANSELL, Defendant and Respondent. |
Court | California Court of Appeals Court of Appeals |
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., of Los Angeles County, Harry Wood and Robert J. Lord, Deputy Dist. Attys., for plaintiff and appellant.
Barsam & LeVeque and Thomas B. Barsam, Los Angeles, for defendant and respondent.
In this prosecution for violation of Penal Code, section 288, a preliminary examination was held before a judge pro tempore, who ordered the defendant held to answer as to two alleged offenses. When the case came before the superior court, a motion made under Penal Code, section 995, was granted and the information was set aside. The court stated, 'I don't think this transcript indicates sufficient evidence to hold this fellow for trial.'
The district attorney has appealed.
The first count in the information alleges an offense against a girl named Debbie, who was 7 years of age at the time of the preliminary examination, July 2, 1962.
Debbie testified that she knew defendant as 'Charley,' and at the time referred to he lived in an apartment in the same building in which she lived. She had two sisters, Katie and Robbin. Debbie and Katie played with Charley 'in the sand' 'under the porch.' What was meant by 'under the porch' is not clearly established, but from other testimony it would appear that the porch referred to was the second story porch, reached by an outside stairway. Further testimony by Debbie on direct examination:
On cross-examination Debbie said that by 'shorts' she meant outside pants or shorts, not underpanties.
Further cross-examination of Debbie:
Debbie could not remember when this had occurred except that it was during the past school semester.
Debbie's mother testified that Debbie had made a complaint to her concerning this occurrence, but she could not remember the date. When pressed, she said she thought it was the early part of April 1962.
The second court of the information pertains to a 6-year-old girl named Denzel, who lived two houses away from Charley. Denzel testified that she had played with Charley one time only. She sat on his lap, Both of her legs were together, but on the side. He touched her with one hand, between the legs. She was wearing jeans, and the hand was on top of the jeans.
She testified: ' Debbie and Debbie's sister 'Katie' were also present. This occurred 'outside the building' and 'by the steps.' The court then questioned Denzel.
Denzel's mother testified: This witness could not remember when this had happened. She believed it was in May 1962. She remembered that after she questioned her daughter, she called the police.
The only other witness was a neighbor, Mrs. Svetlik, who testified that she had seen defendant in the presence of Debbie just once. When asked for the date, she said, She testified defendant was sitting on his porch, which is on the first floor right next to the stairs leading to the second floor. Debbie's sister Robbin was there, and both girls were sitting on defendant's lap, each straddling a knee, both facing away from him. She then testified: .
The information alleges that the offense against Debbie occurred on or about April 17, and the offense against Denzel occurred on or about April 20, 1962. If the district attorney had any basis for inserting these dates in the information, he did not put it in the record.
The district attorney argues that the order dismissing the information should be reversed, relying upon the well established doctrines (1) that the superior court, in deciding a motion under Penal Code, section 995, may not reweigh the evidence (Perry v. Superior Court, 57 Cal.2d 276, 283, 19 Cal.Rptr. 1, 368 P.2d 529; De Mond v. Superior Court, 57 Cal.2d 340, 344; 19 Cal.Rptr. 313, 368 P.2d 865; People v. Perry, 216 Cal.App.2d 8, 10, 30 Cal.Rptr. 788); (2) determination of a child's competency and the weight to be given his testimony are for the magistrate who is the trier of the fact (People v. Burton, 55 Cal.2d 328, 341, 11 Cal.Rptr. 65, 359 P.2d 433); and (3) that the specific intent essential to a conviction for violation of Penal Code, section 288, may be inferred from the...
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