People v. Moody

• Decision Date: 15 May 1963
• Docket Number: Cr. 3411
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis L. MOODY, Defendant and Appellant.

Page 785

30 Cal.Rptr. 785

216 Cal.App.2d 250

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis L. MOODY, Defendant and Appellant.

Cr. 3411.

District Court of Appeal, Third District, California.

May 15, 1963.

Jack N. Martin and John E. Barbeau, Sacramento, for appellant.

Stanley Mosk, Atty. Gen., by John L. Giordano, Deputy Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

Louis L. Moody was convicted by a jury of four violations of section 288 of the Penal Code. (Lewd and lascivious conduct with a child under the age of 14 years 'with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, * * *.') Moody was found to be a sexual psychopath and committed to a state hospital for observation. A motion for a new trial was denied and this appeal is properly from the order of the court denying the motion for a new trial. (Pen.Code, sec. 1237; Cal.Rules of Court, Rule 31.)

The following is a brief summary of the evidence as shown by the record:

Moody operated a barbershop in Sacramento. One day he saw R. and A., both under the age of fourteen, walking on the street in front of his shop. He engaged them in conversation. He then invited them into the back room of the shop where he exposed himself and asked them to touch it. The girls refused. Several weeks later R. and A. returned to the shop and went into the back room with Moody. The girls testified that A. laid down on a white bench and Mr. Moody exposed himself and got on top of A. and put his penis between her legs. Thereafter he engaged in the same type of act with R. Moody also committed two acts with L. She testified that on the first occasion he instructed her to assume a supine position on the bench which she did; that he exposed himself, put his penis between her legs and moved around on top of her. The testimony as to the second incident was similar.

Appellant Moody did not testify in his own behalf but Officer Davies of the Sacramento Police Department testified that he asked Moody if the accusations made by the girls were true and that Moody stated that they were true. Officer Davies testified further that appellant stated he took the girls in the back room of the barbershop and tested them with his finger to see if they were big enough and decided the two smaller girls were not big enough, and then the older, bigger girl, L., was checked and she was big enough. Appellant said, 'I did it with L * * *, and paid her [on] two separate occasions. Three dollars at one time, and four dollars another time.' Appellant also stated that he offered Mr. B. $50 to forget the whole matter.

Officer Camper's testimony was substantially the same as Officer Davis.

Appellant's first contention is that the evidence fell short as a matter of law to prove violation of four counts of section 288 of the Penal Code. In view of the evidence hereinbefore set forth, this contention is clearly without merit.

Appellant's principal contention is that the court erred in refusing to give the following instructions offered by him:

'Every person who annoys or molests any child under the age of 18 is a vagrant. (Penal Code Section 647a.)'

'You may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, if, in your judgment, the evidence supports such a verdict under my instructions.

'To enable you to apply the foregoing instruction, if your findings of fact require you to do so, I instruct you that the offense of lewd and lascivious conduct, violation of Section 288 of the Penal Code, of which the defendant is charged in all four counts of the amended indictment, necessarily includes the crimes of contributing to the delinquency of a minor, a violation of Section 272 of the Penal Code. (CALJIC 115.)'

'If you find that the defendant was guilty of an offense included with the charge of the indictment, but entertain a reasonable doubt as to the crime of which he is guilty, it is your duty to convict him only of the lesser offense. (CALJIC 115-A.)'

The appellant contends that the court should have given the above instructions as the evidence was insufficient to justify a conviction for a violation of section 288 of the Penal Code but would have supported a conviction of the lesser offenses referred to in the proposed instructions. However, as hereinbefore pointed out, the evidence was ample to sustain appellant's conviction of violation of section 288. And while the crime of contributing to the deliquency of a minor is necessarily included in the crime of a violation of section 288, this does not mean that an instruction as to the included offense must be given in every case where one is charged with a violation of section 288. Whether such an instruction should be given will depend upon the evidence in the particular case.

Appellant relies heavily on the case of People v. Carmen, 36 Cal.2d 768 at page 773, 228 P.2d 281 at pages 284-285, in which the court said:

'* * * It has been held that a defendant is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak. As so ably stated in People v. Burns, 88 Cal.App.2d 867, 871, 200 p.2d 134, 136, with ample citation of authority: 'It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. People v. Quimby, 6 Cal.App. 482, 486, 92 P. 493; People v. Foster, 79 Cal.App. 328, 337, 249 P. 231; People v. Hill, 76 Cal.App.2d 330, 343, 173 P.2d 26. The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. People v. Perkins, 75 Cal.App.2d 875, 881, 171 P.2d 919; People v. Peete, 54 Cal.App. 333, 356, 359, 202 P. 51; People v. Wong Hing, 176 Cal. 699, 705-706, 169 P. 357. That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true . People v. Perkins, supra, 75 Cal.App.2d page 881, 171 P.2d page 921; People v. Williamson, 6 Cal.App. 336, 339, 92 P. 313; People v. Keefer, 65 Cal. 232, 234, 3 P. 818. It is the duty of the court to instruct the jury in regard to any included offense which the evidence tends to prove. People v. Stofer, 3 Cal.App. 416, 418, 86 P. 734; People v. Carroll, 20 Cal.App. 41, 45, 128 P. 4; People v. Wilson, 29 Cal.App. 563, 564, 156 P. 337; People v. Mock Ming Fat, 82 Cal.App. 618, 256 P. 270; People v. Driscoll, 53 Cal.App.2d 590, 593, 128 P.2d 382. In People v. Carroll, supra, 20 Cal.App., the court said page 45, 128 P. page 6: 'It is undoubtedly the rule that, where there is any evidence from which a reasonable inference may be...