People v. Miranda

• Decision Date: 20 September 1967
• Docket Number: Cr. 12336
• Citation: 62 Cal.Rptr. 339,254 Cal.App.2d 517
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose P. MIRANDA, Defendant and Appellant.

Page 339

62 Cal.Rptr. 339

254 Cal.App.2d 517

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose P. MIRANDA, Defendant and Appellant.

Cr. 12336.

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

Sept. 20, 1967.

[254 Cal.App.2d 518] Lawrence William Steinberg, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert H. Francis, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Appellant was charged with the crime of committing a lewd and lascivious act upon the body of a child under the age of 14 years in violation of section 288 of the Penal Code. The information also charged appellant with a prior conviction of attempted rape. The judgment entered in the prior action referred to the crime of which appellant was convicted as 'attempted statutory rape,' it appearing that the victim of this offense also had been under the age of 18 years. After first urging the untenable contention that there was no such crime as 'attempted Statutory rape,' appellant admitted the prior conviction as alleged. No issue with respect to the former conviction is presented on this appeal.

At appellant's request the jury in the instant case was instructed that the lesser crime of annoying or molesting a child under the age of 18 years (Pen.Code, § 647a) was an offense necessarily included within that charged. The jury returned verdicts finding appellant guilty of both.

After denying his motion for a new trial, the court below suspended proceedings for the purpose of determining whether appellant was a mentally disordered sex offender. In due course the court found that he was not. Proceedings were again suspended and appellant was granted probation for a period of three years on the condition that he spend the first six months in the county jail. It was further ordered that this jail term was to run concurrently with that which had been imposed in another prior action wherein he had been convicted on a charge of sex perversion. This appeal, mistakenly taken from the judgment and sentence, will be treated as a legally permissible appeal from the order granting probation. (Pen.Code, § 1237.)

In addition to the prior conviction of rape charged in the information, the record before us reveals that prior to the instant offense appellant also was convicted of violating Penal Code section 288a (sex perversion) and probation was granted therein. At the probation and sentence hearing in the instant case, the court was required to consider whether or not the probation granted appellant in the former case should be terminated. The court made the following order thereon: 'On that matter I find that probation has been violated. I will keep the same terms and conditions, except I am going to order one additional In addition to his appeal from the 'judgment and sentence' in the principal case, appellant's notice of appeal is directed to 'all other orders of the court.' We cannot ascertain whether or not this ambiguous statement is intended to refer to the order modifying the terms of appellant's prior probation by reason of his conviction in the instant case, but since appellant makes no reference thereto in his briefs and we affirm the conviction and order made in the present case, it is apparent that appellant has no ground for complaint arising from the modification made in Case No. 267845.

condition: that he serve six months in the County Jail, to be served concurrently with the terms of the probation here.'

Appellant advances the following contentions: (1) that the evidence was insufficient to sustain the conviction; (2) that the prosecution was guilty of prejudicial misconduct in argument to the jury; (3) that the prosecution was guilty of impropper redirect examination of the victim; (4) that evidence of the victim's complaints following the offense was improperly received; and (5) that the receipt of the 'double verdict' was improper. We find no merit in any of these contentions.

No useful purpose would be served by an unduly extended or detailed recital of the evidence which is recorded in the comparatively voluminous record. Defendant did not testify nor did he call any witnesses in his own behalf. The incriminating evidence introduced by the prosecution is substantial, undisputed and without material conflict. It proved a course of conduct on the part of appellant constituting a classic example of the conduct condemned by Penal Code sectin 288.

At about 11 a.m. on July 1, 1965, Joyce K., 12 years old, was at Ganesha Park in Pomona with her sister Renee, age 8, and her brothers Timmy, age 11, Jimmy, age 6, and Dale, age 5. Approximately 15 minutes after arriving at the park Joyce K. first saw appellant, a man approximately 40 years of age, standing by the snack bar near the swimming pool. Joyce K., her sister and brothers then went to the 'tree tunnel' area of the park where bushes had grown in such manner that they had tunnel-like apertures. At this point appellant approached Joyce K. and told her that her youngest brother Dale needed help to get down from the rock wall he was climbing. Joyce K. extended the help.

All then went to the swimming pool. Appellant, standing at this time outside the pool fence, saluted Joyce K. with 'Hi.' Appellant then joined Joyce K. at the pool and told her how to dive across the pool without coming up for air. When Joyce came out of the pool appellant lay down on the cement next to her. He asked wether she could climb a hill nearby and Joyce K. said she did not think so. Appellant said, 'I betcha a quarter you can.' After Joyce K. told him she was not supposed to bet, appellant offered to just give her the quarter. Joyce K. said that was the same as betting. During this conversation appellant asked and was told her name and address. He called her 'Sweetheart' on several occasions.

Thereafter, Joyce K. and her siblings checked out a kickball, went to a lawn area and played kickball. Appellant accompanied them, asking Joyce K. several times to hike in the hills. When her brother Timmy also begged her to go, Joyce K. agreed.

Appellant, Joyce K., her friend Joyce S., and Joyce K.'s brothers and sister proceeded to the tunnels formed by the bushes in a single line. Both Joyces wanted to be at the front of the line. Appellant, however, told Joyce K. to stay at the rear. To proceed through the 3 1/2 foot high tunnel, Joyce K. had to bend over. While she was in this position appellant put his arms around her, interlocking his hands in the front of her body, and on two or three occasions made rubbing motions from her pelvic area, up to her breasts, and then back down again.

At the end of the tunnel the group proceeded in the same single file up the hill.

Appellant again put his arms around Joyce K. and rubbed the front of her body from pelvic area to breast area three or four times. Joyce S. and Timmy both saw appellant continuing these actions.

After the group came down the hill Joyce K. told Joyce S. what appellant had done to her. She later also told Mrs. McIntire, who picked up the children at the park to take them home, about a man who had followed her around the park all day. At about 5:30 p.m. the same afternoon, Joyce K. told her mother about appellant and what had occurred in the park.

On July 15, police officers left a card at appellant's apartment requesting he contact them. Later that day appellant voluntarily came to the police station. The officers informed him a report had been filed charging him with molesting a child in Ganesha Park on July 1. Appellant denied the charges. Detective Azevedo advised appellant of his constitutional rights, and appellant stated he understood his rights and wished to cooperate. He then said he frequented the park and had been there on July 1, and met Joyce K. He denied any caressing of Joyce's body, but said they had gone hiking and he might have touched her to keep her from falling.

The evidence provides overwhelming support for the judgment. The victim's testimony alone would have been sufficient. (People v. Sylvia, 54 Cal.2d 115, 122, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Breeden, 213 Cal.App.2d 343, 344, 28 Cal.Rptr. 693.) Although not necessary to sustain the conviction, in the instant case appellant's conduct was observed by two of the other children and their testimony strongly corroborated that of the victim. In his voluntary statement appellant confirmed very significant aspects of the incident, although he asserted that his touching of the child was without lewd or lascivious intent on his part.

Appellant stresses the fact that he and the girl were not alone at the time the lewd acts were committed. However, this is no more than an indirect presentation of the usual fallacious argument that in order to lessen the likelihood of apprehension, a 'normal' person intending to molest a child would choose a more secluded locale than that selected by the particular accused. The weakness of this argument, of course, is apparent. Normal persons do not molest children in any locale. Those who do commit such acts yield to abnormal impulse and desire and characteristically pursue course of conduct that appear irrational to the normal mind.

The only alleged misconduct of the prosecution during argument to which objection was made during trial was the following statement by the Deputy District Attorney: 'In order for you to acquit this defendant I would hope that you would feel in your minds and hearts that if you ever saw Mr. Miranda again with children you could say, 'That's O.K. That is only Mr. Miranda with children,' and you could stamp it with a blue seal of approval.' In sustaining this objection, the court took pains not only to advise the jury that statements of counsel were not to be considered as evidence but also to instruct them with respect to this specific comment that 'you should not take (it) into account...