People v. De La Roi, Cr. 7046

• Decision Date: 19 October 1960
• Docket Number: Cr. 7046
• Citation: 8 Cal.Rptr. 260,185 Cal.App.2d 469
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Eugene DE LA ROL, Defendant and Appellant.

Page 260

8 Cal.Rptr. 260

185 Cal.App.2d 469

PEOPLE of the State of California, Plaintiff and Respondent, v. John Eugene DE LA ROL, Defendant and Appellant.

Cr. 7046.

District Court of Appeal, Second District, Division 3, California.

Oct. 19, 1960.

Harrison M. Dunham, Hollywood, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen. and A. Douglas MacRae, Deputy Atty. Gen., for respondent.

FORD, Justice.

The appellant was charged with the violation of section 288 of the Penal Code. ¹ He waived his right to trial by jury. He was found guilty. Proceedings were thereafter had in accordance with the provisions of the law relating to sexual psychopaths. Welf. & Inst.Code, § 5500 et seq.

After a period of observation in the state hospital, the appellant was found to be a sexual psychopath. He was thereafter confined in the Atascadero State Hospital. Welf. & Inst.Code, § 5512. Ultimately, the superintendent of that hospital filed a report in which he stated his opinion that the appellant would not benefit by further care and treatment in the hospital and was not a menace to the health and safety of others. Welf. & Inst.Code, § 5517. He was then returned to the court, his motion for a new trial was denied, his application for probation was denied, and he was sentenced to imprisonment in the state prison for the term prescribed by law. The present appeal is from the judgment.

The first contention of the appellant is that the evidence was insufficient to support the conviction. The child involved was eight years old at the time of the alleged offense and at the time of her testimony. No objection to her competency as a witness was made upon completion of the voir dire examination or at any other time. She testified that the appellant was a neighbor and the incident occurred in his house when no one was present other than the witness and the appellant. He mentioned a doll. He touched her private parts with his hand for about ten seconds, placing his hand inside of her shorts and panties. She then said, 'Can I have the doll?' Her mother called her and she left. She told her mother about the incident.

The appellant testified on his own behalf. At the time of his testimony, he was 47 years old. On the day upon which the child said that the incident occurred, she came to his house, a boarding house where he had lived for about a month. She asked him if she might have a doll that was in the house. He told her that she could look at the doll but could not take it. The child pulled her dress out and suggested that he touch her. He said, 'No.' He did not touch her at any time. Her mother called her and she left. On cross-examination, he testified that he had been convicted of a felony on three occasions, two of the convictions being for burglary and one for grand theft.

In his attack upon the credibility of the child, the appellant makes reference to portions of the voir dire examination in which she said that she did not always tell the truth, that she did not know what happens to little girls who fail to tell the truth, and that she had never been punished for telling a lie. She did, however, say that she would not lie with respect to the matter before the court and that 'you should always tell the truth.' The credibility of the child was a matter to be determined by the trier of fact. People v. Wilder, 151 Cal.App.2d 698, 704-705, 312 P.2d 425. The trier of fact believed that she was telling the truth and that the appellant was not. The child's testimony clearly showed the commission of the offense charged. It was not inherently improbable. People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758; People v. Hunter, 158 Cal.App.2d 500, 505, 322 P.2d 942. No corroboration of such testimony was required. People v. Sylvia, 54 Cal.2d 115, 4 Cal.Rptr. 509; People v. Garrow, 176 Cal.App.2d 269, 271, 1 Cal.Rptr. 271; People v. Huston, 156 Cal.App.2d 670, 672, 320 P.2d 175. The determination of the trial court was founded upon substantial evidence and this court cannot disturb it. People v. Cox, 104 Cal.App.2d 218, 219, 231 P.2d 91.

The remaining contention of the appellant is expressed as follows: 'Where the intent of the law is to cure and rehabilitate one who is alleged to be a sexual psychopath, the fact that he has been treated and discharged as allegedly cured should preclude...