People v. Ortez
| Decision Date | 29 September 1953 |
| Parties | PEOPLE v. ORTEZ. Crim. 2413. |
| Court | California Court of Appeals Court of Appeals |
Chas. Lederer, Alturas, Herbert P. Welch, Lakeview, Or., for appellant.
Edmund G. Brown, San Francisco, by Doris H. Maier, Deputy, Sacramento, for respondent.
By an information filed by the district attorney of Modoc county defendant was charged with three counts of violation of section 261(1) of the Penal Code, to-wit: statutory rape. Count one charged the commission of the offense on January 5, 1952; count two charged a like offense on January 8, 1952, and count three charged the same offense on January 9, 1952. Following his plea of not guilty to each of the counts charged and his waiver of his right to trial by jury, the trial proceeded before the court, and at the conclusion thereof defendant was found guilty on count one and not guilty as to counts two and there. His application for probation was denied and he was sentenced for the term prescribed by law.
He now contends: (1) That the record contains no proof of venue; (2) that the trial court erred in not compelling the prosecution to elect the date or dates upon which it relied for conviction; (3) that the district attorney was guilty of prejudicial misconduct in his cross-examination of the defendant, and (4) that the testimony of the prosecutrix was inherently improbable. We find no merit in any of such contentions.
The evidence as disclosed by the record, when summarized in the light most favorable to the respondent, shows that the prosecutrix is the sixteen year old sister-in-law of the defendant. Her education terminated with grammar school which she completed only through the assistance of her instructors. However, she had acted as Mexican interpretor for the Draft Board in her community. Without question she knew the difference between right and wrong and the meaning and consequence of her acts of intercourse with the defendant. She lived with her mother a short distance from the home occupied by her sister and the defendant. At about two o'clock on the afternoon of January 5, 1952 the defendant picked up the girl as she was on her way to her place of employment, offering to teach her to drive if she would accompany him. He then drove to the Dorris reservoir located near the town of Alturas, where the act as charged was accomplished. He then returned to Alturas and left the complaining witness near her place of employment. He admonished her not to tell any one or she would be sorry. While the defendant and the complaining witness were in the vicinity of the reservoir they were observed by two men who had known both the defendant and the complaining witness for several years. A third witness testified to observed a car similar to defendant's near the reservoir at approximately the same hour. On April 30, 1952, following an examination by a physician, it was determined she was then pregnant. From his examination the doctor concluded that conception could have occurred within the month prior to January 23, 1952. The defendant, testifying in his own behalf denied any intercourse with the girl at any time, or that he had taken her to the reservoir site; and in support of his alibi presented evidence that he was working at a town approximately nineteen miles from Alturas on January 8 and 9. Regarding his activities on January 5 he stated that he had remained at home with his wife who was ill but that he did go down town from his home at approximately 2:30 o'clock on that afternoon. In this he was corroborated by his wife. He also denied that he had taught the girl to drive his car or that she had ever driven it while he was with her.
Counsel for defendant has argued at length concerning the lack of evidence that the crime was committed in Modoc county since the record, as he contends, is devoid of evidence as to the exact location of the Dorris reservoir. Whether or not the location of the reservoir was a matter concerning which this court could take judicial notice is a question wholly immaterial to a determination of the issue raised. See People v. Harkness, 51 Cal.App.2d 133, 124 P.2d 85. The testimony of the prosecuting witness was that the defendant invited her into his car in the city of Alturas. Thus the initiation of the offense took place there. Under Penal Code section 781 even though the actual commission of the...
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