People v. Mansell

Decision Date17 June 1964
Docket NumberCr. 9078
Citation227 Cal.App.2d 842,39 Cal.Rptr. 187
PartiesThe PEOPLE, Plaintiff and Appellant, v. Charley Orvil MANSELL, Defendant and Respondent.
CourtCalifornia 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.

FILES, Justice.

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: 'Q. Did you and Katie ever sit on Charley's lap? A. Yes. Q. How would both of you sit on his lap? A. Straddled. Q. Both his legs or one leg; how did you sit? A. One. Q. Each one of you on one leg? A. Yes. Q. And did Charley ever touch you while you were straddled his legs? A. Yes. Q. Where did he touch you? A. He put his hand under my shorts and in between my legs when I was in the cabin, and the other one was when I was under the porch. * * * Q. When Charley put his hand under your shorts, did he touch you? A. Yes. Q. And where did he touch you? A. I don't know. Q. Did he touch your legs? A. Yes. Q. Did he touch any other part of you? A. No. Q. What part of your legs did he touch? A. Under my shorts. Q. Was that close to your body? A. No. Q. where abouts was it did he touch you? A. Right at the end. Q. At the end of your leg? A. (Witness nods head affirmatively.) Q. Is that where your foot is? A. No. Q. Is it the other end of your leg; is that right? A. Yes. Q. Now, this time that you were under the porch with your sister sitting on Charley's, straddled Charley's legs, how long did he touch you under your shorts? A. Right at the end of them. Q. Well, how long Debbie? A. I don't know. Q. Were his fingers still when he put his hand under there or did they move? A. He moved his fingers. Q. Were his fingers touching you when he moved them? A. Yes. Q. This happened at any other time than besides when you were under the porch? A. No. * * * THE COURT: And you say he touched your body, some part of your body? THE WITNESS: Right at the end of my shorts. THE COURT: Right at the end of our shorts. Do you know what part of your body you use when you go to the bathroom to make water; was that the part of the body that he touched? A. (Witness shakes head negatively.) THE COURT: He didn't touch that. Well, you said something about he touched you between the legs; what did you mean by that? THE WITNESS: Right in between them. THE COURT: Right where the two legs come together; is that what you mean? THE WITNESS: Yes.'

On cross-examination Debbie said that by 'shorts' she meant outside pants or shorts, not underpanties.

Further cross-examination of Debbie: 'Q. All right. Now, when you are talking about the end of the shorts, do your shorts come down to about your knees; is that, or were they longer than that? A. (Witness shakes head negatively.) Q. How long? A. They were shorter. * * * Q. Well, how far were they from your knee? A. I don't know. Q. A couple of inches, maybe? A. Yes. Q. Now, the part that Charley touched, was it down at that end of the shorts? Is that where Charley touched you? A. I don't know. Q. Well, you say it was at the end of your shorts; was it down closer to your knee? A. Yes. Q. And was he just patting you down closer to your knee; is that what he was doing? A. I don't know. Q. Was he bouncing you up and down on his knee, too? A. Yes. * * * Q. Now, Debbie, was this outside where everybody could see? A. Yes.'

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, 'Facing him. But sideways.' 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: 'Q. Just exactly where did he touch you between your legs? A. On the side of them. Q. Was it the inside or the outside? A. Outside. Q. On the outside of your legs? A. Yes. Q. This is outside the legs of your jeans; is that what you mean? A. Yes. Q. Or what do you mean, Denzel? A. On the outside of my jeans. Q. And where abouts on your legs did he touch you; what part of your leg did he touch? A. On the side over here. Q. Where is that? Denzel, you know where you make water? Q. A. Yes. Q. Did he touch you near there? A. Yes. Q. Did he touch you there? A. No. Q. Just near there? A. Yes. Q. Were his fingers moving or were they still? A. They were still. Q. How long did he touch you? A. For just a minute.' Debbie and Debbie's sister 'Katie' were also present. This occurred 'outside the building' and 'by the steps.' The court then questioned Denzel. 'THE COURT: Now, can you point to some part of your body, you say that Charley touched with his hand? THE WITNESS: Between my legs. THE COURT: Can you stand up there so I can see. You want to come over, counsel. MR. BARSAM: Yes. THE COURT: Now, you point so we can see what he did. I can't see your hand. Your clothes are in the way. I see, just like that, and he moved his hand, did he? THE WITNESS: Yes.'

Denzel's mother testified: 'Q. BY MR. SPERRY: Now, did Denzel make a complaint to you concerning what she has testified to? A. Not her directly; one of the neighbors came--MR. BARSAM: I object as not being responsive. THE COURT: You listen to the question. THE WITNESS: Well, the--THE COURT: The answer would be no. THE WITNESS: No. She did later after I got ahold of her.' 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, 'I don't remember. That was, I think it was April, April or June, the last of April or beginning of June, somewhere in there--I mean May.' 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: 'Q. What did you observe, please? A. He had his hand between their, between their legs, both of them. Q. Was his hand on the outside or the inside of the clothing? A. Outside. Q. What type of clothing did they have on? A. Shorts. Q. Was he touching them? A. Well, on the outside of their clothes, but his hands was in between their legs. Q. What areas of their body, if any, was he touching? A. Between his legs--their legs in--. Q. Was he touching only their legs or was he touching their body? A. No, he was touching their body, too. Q. And how long did you observe this? A. Just for a minute. Q. Which direction was the defendant looking? A. Well, towards me. I came out the door to hang out some clothes; and my staircase is right in front of our door; and I walked around the staircase, and he was there; and I walked just about to the second apartment house, and he saw me, and he stopped, you know; he stopped and moved his hands from the leg when I seen him.'

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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  • People v. Levesque, A065936
    • United States
    • California Court of Appeals
    • May 30, 1995
    ...children not to say anything to their parents. This evidence of appellant's intent distinguishes the case from People v. Mansell (1964) 227 Cal.App.2d 842, 39 Cal.Rptr. 187, upon which appellant heavily relies, in which the court affirmed the dismissal the information alleging two section 2......
  • Griffin v. Martinez
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    • U.S. District Court — Eastern District of California
    • September 8, 2021
    ...... committing a lewd act upon a child under the age of 14 and. one count of sexual penetration of a child age 10 or younger. People v. Griffin , No. F068898, 2016 Cal.App. Unpub. LEXIS 7226, at *1 (Cal. 5th App. Mar. 24, 2017). Griffin was. sentenced to a total ... gratifying the lust or passions or sexual desires of the. defendant or of the child.” (People v. Mansell . (1964) 227 Cal.App.2d 842, 847, 39 Cal.Rptr. 187, citing. People v. Jones (1954) 42 Cal.2d 219, 223, 266 P.2d. 38.) “The ......
  • People v. Morales
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    • California Court of Appeals
    • November 27, 2018
    ...reasonable inference that his touchings of Jane Doe 2 were similarly motivated.Defendant relies heavily on People v. Mansell (1964) 227 Cal.App.2d 842, 39 Cal.Rptr. 187 ( Mansell ). In Mansell , the prosecution appealed after an information alleging two section 288 counts against two little......
  • People v. Whitham
    • United States
    • California Court of Appeals
    • September 29, 1995
    ...that section 288 is a specific intent crime (see, e.g., People v. Jones (1954) 42 Cal.2d 219, 223, 266 P.2d 38; People v. Mansell (1964) 227 Cal.App.2d 842, 847, 39 Cal.Rptr. 187). Thus, if Whitham is correct, the trial court erred by failing to instruct on the " 'sexual gratification' spec......
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