People v. Moore

• Decision Date: 22 November 1955
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. Joseph Godfrey MOORE, Appellant. Civ. 3122.

Page 40

290 P.2d 40

137 Cal.App.2d 197

The PEOPLE of the State of California, Respondent, v. Joseph Godfrey MOORE, Appellant.

Civ. 3122.

District Court of Appeal, First District, Division 1, California.

Nov. 22, 1955.

Hearing Denied Dec. 21, 1955.

Albert T. Shine, Jr., Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., San Francisco, J. F. Coakley, Dist. Atty., of Alameda County, Robert L. Anderson, Deputy Dist. Atty., Oakland, for respondent.

PETERS, Presiding Justice.

Defendant, by information, was charged with having violated Section 647a(1) of the Penal Code. The charge was that on June 23, 1954, he did 'annoy and molest' a small girl, and that he had previously been convicted of a similar charge under the same section in Los Angeles County.

Section 647a(1) reads: 'Every person who annoys or molests any child is a vagrant and is punishable upon first conviction by a fine of not exceeding five hundred dollars ($500) or by imprisonment in the county jail for not exceeding six months or by both such fine and imprisonment and is punishable upon the second and each subsequent conviction by imprisonment in the state prison not exceeding five years.'

The purpose of the section is clear. In People v. Pallares, 112 Cal.App.2d Supp. 895, at page 900, 246 P.2d 173, at page 176, this purpose was expressed as follows: 'The object of the enactment of the code section was the protection of children from interference by sexual offenders, and the apprehension, segregation and punishment of the latter. It is common knowledge that the subject of sex offenders, and particularly the protection of the young from improper advances, has in recent years engaged the close attention of the legislature and of the general body of the citizens of this State.'

112 Cal.App.2d Supp. at page 901, 246 P.2d at page 176 the proper interpretation of the section was given by the court as follows:

'It seems equally clear that the meaning of the words 'to annoy or molest', as employed in the Code section, are sufficiently definite and certain to advise the public generally what acts and conduct are prohibited. Annoy means to disturb or irritate, especially by continued or repeated acts; [citations] 'to weary or trouble; to irk; to offend; to disturb or irritate, esp. by continued or repeated acts; to vex; to molest; * * * harm; injure'. (Webster's New International Dictionary Second Edition.)

'The same dictionary defines 'molest' as, 'to interfere with or meddle with unwarrantably so as to injure or disturb'. Molest is, in general, a synonym for annoy. The term 'molestation' always conveys the idea of some injustice or injury. Molest is also defined as meaning to trouble, disturb, annoy, or vex. [Citation.] * * * 'When the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this particular offense, a reading of the section as a whole in the light of the evident purpose of this and similar legislation enacted in this State indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children. It should be noted further that the section must be construed reasonably as setting up an objective test for annoyance or molestation; * * *. The annoyance or molestation which is forbidden is in no sense a purely subjective state on the part of the child. The objectionable acts of a defendant constitute the annoyance or molestation contemplated by the statute. [Citation.]'

This case was approved in People v. McNair, 130 Cal.App.2d 696, 279 P.2d 800. After quoting with approval from the Pallares case, supra, the court stated, 130 Cal.App.2d at page 697, 279 P.2d at page 801: 'It is also settled that the element of annoyance as provided in section 647a(1) of the Penal Code is not concerned with the state of mind of the child. It is the objectionable acts of defendant which constitute the offense. (People v. Pallares, supra, 112 Cal.App.2d Supp. 901, 902, 246 P.2d 173.) If the conduct of a defendant is so lewd or obscene that the normal person would unhesitatingly be irritated by it, such conduct would 'annoy or molest' within the purview of section 647a(1), Penal Code. [Citations.]'

The main contention of defendant is that the evidence does not support the finding that he performed any acts with the intent to 'annoy' or 'molest' the child within the meaning of Section 647a(1) of the Penal Code as interpreted in these two cases. This requires an examination of the record. Before summarizing the evidence, however, it seems necessary to call attention to the well settled but often overlooked rule that on such an appeal the appellate court must view the evidence in the light most favorable to the prosecution. If there is any substantial evidence or reasonable inferences from that evidence to support the judgment the appellate court must affirm. People v. Pianezzi, 42 Cal.App.2d 265, 108 P.2d 732. In People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 779, the Supreme Court restated this rule in the following language: 'The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. [Citations.]'

The trial judge charged the jury as to the elements of the offense as set forth in the Pallares and McNair cases, supra, both as to the overt acts and the intent required to constitute the offense charged. The instructions told the jury what is necessary to constitute 'annoying' or 'molesting,' and stated that the challenged conduct must be motivated by an abnormal or unnatural sexual interest or intent before a conviction was justified. The basic question is whether the evidence, tested by the standards set forth in the Newland case, supra, supports the implied findings of the jury that such acts were committed by defendant with the required intent.

The sufficiency of the evidence turns upon the credibility of one witness--a Mrs. Dotson. A review of the evidence follows:

The child affected was M. K., a girl eight years old, who lived with her parents in Berkeley. The defendant was employed by a social service organization to solicit contributions for the agency. The child first met defendant on June 20, 1954, while playing in the driveway next to her home. She testified that defendant then appeared quite friendly, and that they had a discussion about the ball with which she was playing. On the next day, June 21, 1954, defendant again visited the area and had a small ball attached to a string which he told M. K. that he would give to her, but did not do so. On this occasion defendant solicited at the home of M. K. for funds for the agency for which he was collecting. On June 23, 1954, defendant again returned to the area to solicit funds. M. K. was then playing with another little girl and boy in a garden adjoining the home of a Mrs. Lott, who was a neighbor of the parents of M. K., and who cared for the child during the day when the mother of M. K. worked. The child testified that she accompanied defendant to the house next to Mrs. Lott's because she wanted the ball he had promised; that when they got to the top of the stairs defendant picked her up and they had a discussion about her weight; that when the occupant of the house came to the door defendant put her down and solicited a contribution; that she then accompanied defendant to the porch of Mrs. Lott's house where defendant again picked her up and they again discussed her weight; that when Mrs. Lott came to the door defendant put her down. Defendant then solicited a contribution from Mrs. Lott. The child testified that, although she had not asked defendant to pick her up, at no time did he hurt her.

So far, the testimony shows nothing but friendly non-criminal activity on the part of defendant. The prosecution sought to show criminality by the testimony of Mrs. Dotson. Her house was so located that from her kitchen window she could clearly see the garden where M. K. was playing with other children, the stairway of the large house next to Mrs. Lott's, and Mrs. Lott's front porch. The distance from her kitchen window to the stairway of the large house was about 100 feet, and the distance to the front porch of the Lott house slightly less. Mrs. Dotson testified that from her kitchen window an June 23rd she observed M. K. playing in the garden; that she saw defendant approach the child and bring out a ball on a string; that she saw defendant and M. K., hand in hand, ascend the stairway of the house next to Mrs. Lott's; that she saw defendant pick M. K. up, place his hands under her buttocks and then move the front of her body up and down against the front of his body; that...