People v. Costa

Defendant and appellant, aged 18 years, was charged by information, in count one, with the crime of committing statutory rape on a girl 13 years of age. In the second count he was charged with violating section 288 of the Penal Code by performing certain lewd and lascivious acts upon her body. A jury trial resulted in a verdict of not guilty on the first count and guilty on the second count. Conditional probation was granted for three years providing defendant served five months in the county jail. He appeals from the orders denying a new trial, an oral motion in arrest of judgment, motion to set aside count 2 of the information and judgment or order granting probation under section 1237, subdivision 1 of the Penal Code.

On July 18, 1955, the minor child, Susan, resided in Visalia with her parents who, that evening, were at a show.

The sheriff’s officers apprehended defendant at his home. Later he told about the occasion, signed a statement to this effect, admitted partial penetration and that he inserted his finger in Susan’s vagina. The evidence is sufficient to show the commission of both offenses charged. (People v. Greer, 30 Cal.2d 589 [ 184 P.2d 512 ].)

It appears that defendant was originally charged in a complaint before the committing magistrate with the crime of statutory rape and was held to answer on that charge.

The next claim is that the prosecuting attorney and the trial court were guilty of prejudicial misconduct during the argument of the ease and in instructing the jury. It appears that several of the boys on the trip testified at the trial. Counsel for defendant on cross-examination of the boys first brought out the fact that they had each been charged with and pleaded guilty to contributing to the delinquency of a minor child but had not been sentenced at the time of this trial. In his argument to the jury he bore upon the fact that the prosecution showed partiality in charging this defendant with the crimes indicated and not also charging him with that lesser offense. He argued that under the law those other boys were equally guilty of these offenses because they did, as a matter of law and fact, aid and abet defendant in the commission of them. An instruction to this effect was offered by defendant and refused. The court interrupted his argument and told the jury that as a matter of law, under the evidence, those boys could not be held to be principals. The trial court, from the evidence produced, was justified in so holding, in refusing the proffered instruction and was authorized to inform counsel for defendant, as well as the jury, of such ruling so as to preclude further argument to that effect.

A more serious question arises as to the next claim. In the prosecutor’s opening argument to the jury he properly

In the argument of counsel for defendant he suggested, at most, a verdict of guilty of contributing to the delinquency of a minor, an included offense. (See People v. Greer, supra.) He then remarked that the prosecution elected to file charges of statutory rape, a felony, with the right of the jury to determine whether or not “you shall send him to the penitentiary or recommend local incarceration”; that as to the second count “it does not give you the privilege of recommending. It is a state penitentiary offense. That is what it amounts to.” In reply the prosecutor stated that it would have been unfair to have charged these other boys with the crimes here charged, and it was unfair, from the evidence, for counsel for defendant to suggest that they be treated alike. He then said that counsel for defendant well knew that the question of punishment on the second count was “up to the judge”; that neither he nor defendant’s counsel had a right to tell the jury about the punishment on that count; that since defendant’s counsel brought up the question of punishment on that count it was only fair to say that the judge could exercise his discretion and “put defendant on probation, if he wants to.” No assignment of error was made to the argument of the prosecutor.

After the jury retired, it returned for further instruction and one juror stated that some of the jurors were confused as to punishment on the second count, i.e., whether it was a jail sentence, state prison sentence or probation. The judge

While the question of punishment as to the second count, or the possibility of probation on either count should not have been mentioned to the jury either by counsel for defendant or the prosecution, and should not have been considered by the jury in determining whether the defendant was innocent or guilty, we conclude that the trial judge did not commit prejudicial error in the remarks made. It was a conscientious effort to clarify the statement made and insinuations left by respective counsel. No prejudicial error resulted from the prosecution attorney’s argument in reply to the argument of defendant’s counsel, since the trial court correctly informed the jury in the final analysis as to the jury’s duty in this respect. (People v. Sykes, 44 Cal.2d 166 [ 280 P.2d 769 ].)

Judgment and order denying a new trial affirmed. Attempted appeal from remaining orders dismissed.

Barnard, P. J., and Mussell, J., concurred.

A petition for a rehearing was denied June 4, 1956, and the following opinion was then rendered:

On a petition for rehearing it has been pointed out that the transcript of the proceedings at the preliminary examination was included among the pages of the voluminous reporter’s transcript at the trial. We have carefully examined it and conclude that there was sufficient evidence authorizing the district attorney to add the second and additional count to the information and that the trial court was justified in denying the motion to dismiss that count. As thus modified, the petition for rehearing is denied.

Appellant’s petition for a hearing by the Supreme Court was denied June 20, 1956.