People v. Scholl

CourtCalifornia Court of Appeals
Citation37 Cal.Rptr. 475,225 Cal.App.2d 558
Decision Date13 March 1964
Docket NumberCr. 9282
PartiesThe PEOPLE, Plaintiff and Respondent, v. Henry Robb SCHOLL, Defendant and Appellant.

Lawrence & Adelman and Ivan E. Lawrence, Canoga Park, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert H. O'Brien, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was convicted by court trial of violation of sections 288 and 288a of the Penal Code, sexual offenses upon a female child eight years of age. Defendant appeals from the order of the trial court denying a new trial. (Pen.Code, § 1237, subd. 2.)

Contentions on appeal are generally that (1) the child prosecutrix, by reason of inability to receive just impressions and to relate them truly, failed to qualify as a competent witness; that her testimony was uncorroborated with respect to the convicting acts; (2) the evidence was insufficient, assuming the child's competency as a witness, to support the judgment because (a) there was no expert testimony corroborating the child's testimony, (b) prosecuting witnesses contradicted the testimony of the child witness, resulting in a fatal lack of corroboration, (c) the child witness was inconsistent and contradictory in her testimony, (d) the child's testimony was conditioned through the mother's discussion, in the child's presence, of purported facts and circumstances of the alleged offenses; (3) the attempted impeachment of the mother as a co-prosecutrix was prevented by the trial court and was error; (4) proffered new evidence on the motion for a new trial would probably have caused a different result; and (5) the combination of the foregoing conditions, in view of the heinous nature of the offenses charged and the difficulty to defend against same, should, justly, require a new trial.


Defendant strongly attacks the competency of the child witness. It is unnecessary to repeat the testimony tending to establish the credibility and competency of the child. The provisions of section 1880, subdivision 2, of the Code of Civil Procedure, to the effect that 'Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly' cannot be witnesses, were found inapplicable by the trial court. Such determination should not be disturbed on appeal where there is substantial evidence to support it. (People v. Cox (1951) 104 Cal.App.2d 218, 219, 231 P.2d 91.) In determining abuse of discretion the entire record may be considered (People v. Pike (1960) 183 Cal.App.2d 729, 732, 7 Cal.Rptr. 188), and conflicts in evidence and even testimony subject to suspicion will not justify reversal of a judgment otherwise based on adequate evidence. (People v Lease (1961) 198 Cal.App.2d 383, 386, 17 Cal.Rptr. 796.) The evidence is more than adequate in this case. In the essentially important testimony elicited from the child her statements are simple, clear and coherent. Authorities are abundant confirming the competency of child witnesses even of five and six years of age. (People v. Burton (1961) 55 Cal.2d 328, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Slobodion (1948) 31 Cal.2d 555, 191 P.2d 1; People v. Bernal (1858) 10 Cal. 66; People v. Pike, supra, 183 Cal.App.2d 729, 7 Cal.Rptr. 188; People v. Carpenter (1935) 3 Cal.App.2d 746, 40 P.2d 524.)


The evidence was sufficient to support the judgment. There were no eyewitnesses to the exact sexual offenses, and no evidence of physical harm, nor other corroboration. However, corroboration is not prerequisite to a conviction of a crime of this nature. (People v. Sylvia (1960) 54 Cal.2d 115, 122, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Cox (1951) 104 Cal.App.2d 218, 219, 231 P.2d 91.) The apparent conflicts in the testimony about the times, places and circumstances related to the offenses, noted by defendant, are to be deemed to have been properly weighed by the trial court. (People v. Lease, supra, 198 Cal.App.2d 383, 386, 17 Cal.Rptr. 796; People v. Goldberg (1952) 110 Cal.App.2d 17, 22, 242 P.2d 116.) Stress is laid by defendant upon the child's failure to immediately complain to her mother. The complaint was made about four weeks after the first incident, but it included the second incident, which occurred about nine days before the complaint. However, the child testified that defendant threatened to kill her and her mother and she was scared. Such delay, under such circumstances, was not unreasonable nor the testimony too remote as a matter of law.


Upon the motion for new trial, newly discovered evidence was asserted by defendant which consisted only of good character witnesses. There is nothing in the record nor in the argument of counsel to indicate that such form of evidence was unavailable at the time of trial. Counsel on appeal did not represent defendant at the trial but the trial judge was confronted with the issue of the probability of a different result in the event such additional evidence was before the court upon a new trial. (People v. Nothnagel (1960) 187 Cal.App.2d 219, 9 Cal.Rptr. 519.) Even facts not divulged to his trial counsel, if known at that time, would not warrant a new trial when divulged to new counsel, on the ground of newly discovered evidence. (People v. Greenwood (1957) 47 Cal.2d 819, 306 P.2d 427.)


Defendant attempted to cross-examine the child's mother by inquiring if she had complained of advances made to her by various men. The court rejected the proffer. We think it was in error. It is well established that such cases as these are fraught with great danger, since the charge rests on the credibility of a child witness against the defendant's denial. Especially where, as here, there is a total lack of corroboration, a belated complaint by the child to her mother, and a marked inconsistency in her testimony, the courts must heed the admonition of our Supreme Court in People v. Adams (1939) 14 Cal.2d 154, 167, 93 P.2d 146, 152;

'As a matter of practical observation to many judges who have presided over trials of this nature, it is plainly recognized that, notwithstanding the salutary rule that an accused is presumed to be...

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19 cases
  • Ballard v. Superior Court of San Diego County
    • United States
    • California Supreme Court
    • February 15, 1966
    ...against other men. (See also People v. Murphy (1963) 59 Cal.2d 818, 831, 31 Cal.Rptr. 306, 382 P.2d 346; People v. Scholl (1964) 225 Cal.App.2d 558, 562, 37 Cal.Rptr. 475.) Following this trend the District Court of Appeal in People v. Neely (1964) 228 Cal.App.2d 16, 39 Cal.Rptr. 251, recen......
  • People v. Harlan
    • United States
    • California Court of Appeals Court of Appeals
    • July 23, 1990
    ...child under 14. (E.g., People v. Morales (1967) 254 Cal.App.2d 194, 199, 61 Cal.Rptr. 764 [13-year-old]; People v. Scholl (1964) 225 Cal.App.2d 558, 561, 37 Cal.Rptr. 475 [8-year-old]; People v. Pilgrim (1963) 215 Cal.App.2d 374, 379, 30 Citing various scientific studies, amici argue that t......
  • Foss v. Martel, No. 2:09-cv-3551 JAM-JFM (HC)
    • United States
    • U.S. District Court — Eastern District of California
    • May 2, 2012
    ...questioning the victim's mother concerning, in the words of the opinion, "advances made to her by various men." (People v. Scholl (1964) 225 Cal.App.2d 558, 562-564 (Scholl).) As he did in the trial court, [petitioner] relies on Scholl in making his argument on appeal.We conclude that Schol......
  • Curry v. Superior Court
    • United States
    • California Supreme Court
    • June 19, 1970 given wide latitude. (People v. Murphy (1963) 59 Cal.2d 818, 830--831, 31 Cal.Rptr. 306, 382 P.2d 346; People v. Scholl (1964) 225 Cal.App.2d 558, 562, 37 Cal.Rptr. 475; People v. Jackson (1960) 183 Cal.App.2d 332, 340, 6 Cal.Rptr. 505.) The trial court's flat assertion that 'You can't i......
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