People v. Mizer

Decision Date29 August 1961
Docket NumberCr. N
Citation195 Cal.App.2d 261,15 Cal.Rptr. 272
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Robert Henry MIZER, Jack Edwin Mosser, Arthur Bob and Perry James Fuller, Defendants, Robert Henry Mizer, Defendant and Appellant. o. 7565.

J. B. Tietz, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman Gregory Taylor, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment and orders wherein the appellant was found guilty of violating the provisions of Section 647a(1), Penal Code (molesting and annoying children).

In an information filed in Los Angeles County on March 11, 1960 the named defendants were charged in Count I with conspiring to violate Sections 288a, 286 and 647(a), Subdivision 1 of the Penal Code and Section 702 of the Welfare and Institutions Code; Count II had to do with charges against the defendant Perry James Fuller; Count III charged Fuller and the appellant jointly with the infamous crime against nature upon the person of Arthur Perry Pritchard (Pritchard was described as being a person of 16 years of age in Count I); Count IV charged the appellant with orally copulating the sexual organ of Pritchard; Count V charged Fuller and appellant with the infamous crime against nature upon the person of Pritchard; Count VI had to do with charges against Fuller and Bob and Count VIII had to do with charges against Fuller and Mosser. Appellant pleaded not guilty (May 11, 1960). In due time (May 18, 1960), appellant made a motion for an order for a commission to take interrogatories. The prosecution made a request at that time to take cross-interrogatories. The motions were granted and the commission issued (May 18, 1960). A jury trial was waived. Each defendant was represented by counsel in court on July 5, 1960. The court stated at that time to counsel, '* * * you are willing to have this matter submitted, is that correct?' The deputy district attorney thereupon stated the stipulation with reference to giving up a jury trial and each of the defendants waived a jury trial. The deputy district attorney then offered to stipulate that the prosecution's case in chief would be submitted upon the testimony taken at the preliminary hearing; both sides to reserve the right to present additional testimony.

The appellant's counsel thereupon stated as follows:

'Mr. Tietz: I stipulate on behalf of the defendant Mizer as stated by the prosecutor, with one addition, which I think will be agreeable, that the interrogatories proposed by the defendant Mizer and proposed by the prosecution, of certain witnesses in Texas, be available to the court.

'Mr. Mayer: We have no objection to that, your Honor.

'The Court: Do you so stipulate?

'Mr. Mayer: So stipulate.

'The Court: This case will now be transferred to Department 109.' (Emphasis added.)

The matter, as indicated, was transferred to Department 109 and thereupon the case was continued to August 11, 1960; on August 11 it was continued to October 10, 1960; on October 10 it was continued to October 17, 1960; on October 17 it was continued to November 16, 1960.

On November 16, 1960 the judge announced that he had read the preliminary hearing transcript. The court found Mosser not guilty, and found Bob guilty of violation of the provisions of Section 647a of the Penal Code, a lesser and included offense in Count VI and not guilty as to all other counts.

The appellant produced a Sergeant Cantrell of the police department as a witness. The court thereupon found appellant not guilty as to Count I. The police officer then testified. A minister of a church also testified in behalf of the appellant with particular reference to his good reputation in the community. The appellant also produced as a witness a high school teacher who had known the appellant and his family for several years and that witness testified that his reputation was in effect excellent. The appellant testified in his own behalf and categorically denied the statement of the prosecution's witness Pritchard with reference to any sex deviation activity.

The transcript of the preliminary hearing discloses that Pritchard, a white man, testified that he had arrived in Los Angeles on January 17, 1960 as a hitch-hiker from his home in Texas and at such time was 16 years of age. He testified that he met Fuller, a colored man, and went to Fuller's hotel room for two weeks; that Fuller had abnormal sexual activities with him; that Fuller took him to appellant's photographic studio and there he posed as a boxer for some photographs; Pritchard also testified concerning appellant, 'he gave me a blow job' and he further stated concerning appellant, 'he did corn-hole me a while, but that was all.' By the terms used Pritchard apparently meant that appellant had orally copulated his private parts and that he had committed the crime against nature upon him, namely sodomy.

There is no question that Pritchard was in appellant's photographic studio and that certain posed pictures (some of which are in evidence) were taken. Pritchard was paid for posing at substantially the rate which the appellant paid to regular models.

Upon the testimony's being concluded the appellant's counsel argued the cause to the court. He stated among other things the following:

'Mr. Tietz: Your Honor, this matter, it seems to me to be one of the relative credibility of the boy and this defendant.

* * *

* * *

'With respect to the boy, I think we are fortunate--the Court, of course, is included in that remark--that we were able to get something on the background of this boy.

'I think that the Court will agree with me that this boy has had a rather unfortunate background. He perhaps has had little or no education, because of the environment, the broken home, the stepfather going to prison, and all of the other problems that came up to him because of that environment.

'There are certain deductions, I think, we are entitled to make. We believe--the defendant believes--we took interrogatories from three people down there, whose names we secured, whom the boy said he knew, because we knew those would aid our cause.

'Those interrogatories are in the file and without going into the detail of them, there is one from the school principal and the police officer and the other person who knew his reputation down there, and I think they show something of the witness' reputation for honesty and integrity, and also something of his background, and that is part of the basis of some of the agrument (sic) I would like to make to the Court.' (Emphasis added.)

Counsel then pointed out that Pritchard appeared to be at least 19 years of age, 6 feet in height, was a boxer, was quite aggressive, repeatedly volunteered statements at the preliminary hearing; further that he he had failed to tell the doctor at juvenile hall about his purported experiences; his alternating certainty and then complete vagueness about common place matters.

At the conclusion of the appellant's argument the following was stated:

'The Court: Even giving the defendant the benefit of a lot of doubt, both on this point and the other points you have mentioned, when you put the whole thing together, I still think he is guilty of a crime here, and I think it is 647a.1, which is a lesser and necessarily included offense in the offense charged.

* * *

* * *

'Mr. Tietz: It seems to me the evidence would hardly support that.

'The Court: It seems to me that the evidence support that, and that is what I am going to find the defendant guilty of.

'Do you submit it?

'Mr. Tietz: Yes, your Honor, I will submit it.

'Mr. Mayer: Submit it.

'The Court: The defendant is found guilty of violation of 647a.1 of the Penal Code, being a lesser and necessarily included offense in the offense charged.

'That is on Count 4, and I will find him not guilty on the other counts. (Emphasis added.)

'In order to preserve the rights of the defendant along with the other defendants, I will order a motion for new trial and all the statutory grounds to be entered.'

On December 12, 1960, the matter came on for hearing--the motion for new trial, the probation officer's report and sentencing. Appellant's counsel started to make a statement and the judge interrupted and stated:

'The Court: May I make a suggestion?

'Perhaps we can allow the withdrawal of the submission at this point and let him go to trial on this matter.

'Mr. Jacobson (Deputy district attorney): Your Honor, this was a case that was handled by Mr. Leon Mayer. It came from another Department. As far as I am concerned that would be agreeable.

'The Court: I would be willing to go along with that if you wish to try the case, if you want to withdraw the submission and resend (sic) everything and start over on another trial on it.

'Mr. Tietz: Might I confer with my client? I think he will want that.'

A short recess was then taken and upon resumption of the proceedings the appellant's counsel stated:

'Mr. Tietz: As we understand it, it would be reset for jury trial?

'The Court: Start all over.' (Emphasis added.)

Thereupon the deputy district attorney apparently had a change of mind and argued that it would be most unfair to do so and the court then followed the suggestion of the deputy district attorney--namely, not to take any such action as had been discussed by the court.

Appellant's counsel argued to the court on the motion for a new trial and said among other things:

'Here is a boy as the Court knows as shown by the Court's synopsis of the facts, recollection of the facts and testimony, he was 16, he appeared to be much older, he was six feet tall, he had been a boxer, he was posing as a boxer for the defendant, he accepted pay for posing.'

He further pointed out that the pictures were not lewd in any respect. The motion for...

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  • Gladys R., In re
    • United States
    • California Supreme Court
    • 30 Enero 1970
    ...137 Cal.App.2d 197, 200, 290 P.2d 40; see In re Sheridan (1964) 230 Cal.App.2d 365, 372, 40 Cal.Rptr. 894; People v. Mizer (1961) 195 Cal.App.2d 261, 268--269, 15 Cal.Rptr. 272; 2 Witkin, Cal. Crimes (1963) § 619, pp. 567--568.) 'The primary purpose of (section 647a) is the 'protection of c......
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