People v. Akers

Defendant and appellant, aged 42, was convicted by a jury on a charge of committing lewd and lascivious acts on a boy, 11 years old, in violation of section 288 of the Penal Code, in one count, and in a second count of the crime of sex perversion (oral copulation) in violation of section 288a of the Penal Code. He was sentenced to state’s prison, sentences to run concurrently on each count.

It does not appear from the record that a motion for new trial was made. Accordingly, the attempted appeal from an order denying such a motion must be dismissed.

Two police officers heard the story above related by Michael and proceeded with him to the room, knocked on the door, and defendant inquired as to who was there. They replied, ‘ ‘ police officers,” and defendant opened the door. Defendant was nude at the time and before accusation was made, defendant remarked that it was a “bum rap” and that someone was trying to “frame” him. One officer took Michael out of the room. The other officer then noticed the nude pictures, some on the floor and others on the bed. Defendant was then informed of the boy’s story and the nature of the charge. He admitted the boy had been in the room and that he had given him some money. Defendant was taken to jail and later stated he saw the boy at the corner that evening and told him he would buy all of his papers and that the boy later came to his room while he was dressing and he gave him $1.00 and told him to sell his papers to someone else; that the door was open or left ajar about one foot all of this time. He testified showing the boy the pictures and denied the acts. Later he signed a written statement that he had been drinking quite heavily; that after he agreed to buy all of the boy’s papers, the boy followed him to his room where the boy became interested in some art pictures that defendant had.

Defendant testified that he agreed to buy all of the boy’s papers and the boy went down the street and gathered up some more; that he did not have sufficient change to satisfy him; that he invited him to his room where he thought he had enough money to pay him and found that he had only $1.00 and that the boy argued with him about his refusal to buy all his papers and he told him to come back at 7 o’clock and he would have the money. He further testified that at all times the blinds on the porch window were up. In rebuttal, the landlady said she noticed that about this time the blinds had been pulled down in defendant’s room, that the door to his room was closed and that when she previously made defendant’s bed there was no evidence of pictures in the room or on the bed.

. As we construe the contentions of appellant on this appeal, he claims that the two charges in the information con

People v. Slobodion, 31 Cal.2d 555 [ 191 P.2d 1 ] is factually so similar to the instant case no further consideration of the point is required. It is clear that the evidence shows certain acts denounced by section 288 of the Penal Code were committed independent of the acts denounced by section 288a, which acts would not be necessarily or normally associated with each other. The defendant was properly charged and convicted of the two crimes and he did not suffer double jeopardy. (In re Chapman, 43 Cal.2d 385 , 389 [ 273 P.2d 817 ].)

It is next argued that the testimony of the boy was “inherently improbable. ’ ’ Evidence which discloses circumstances that are unusual cannot be said to be inherently improbable. (People v. Klinkenberg, 90 Cal.App.2d 608 [ 204 P.2d 47 , 613].) In the instant case the jury had before it all the circumstances bearing on the matter and undoubtedly concluded that the offense was not only possible but was in fact perpetrated as related. The credibility of the witnesses and the weight to be accorded to their testimony are matters left solely to the discretion of the trier of fact. (People v. Leete, 130 Cal.App.2d 725 [ 279 P.2d 769 ] ; People v. Shevette, 98 Cal.App.2d 782 , 786 [ 221 P.2d 227 ].) The evidence of guilt was ample and the determination as to the truth or falsity of the testimony has been determined adverse to defendant’s contention by the constitutional arbiter of the matter.

Claim is made that defendant was denied a speedy trial in not having his trial within 60 days after the filing of the information. (Pen. Code, § 1382.) He was arraigned on September 2, 1955, and on his motion the court continued the time to plead to September 7. On that date defendant presented a motion to set aside the information and the district attorney was properly allowed to file an amended information. He was arraigned on the amended information and entered a plea of not guilty to both counts and the court set October 5 as the time of trial. No protest was made as to the date or time. No objections to the trial on that date were indicated nor was such contention made until this appeal

Defendant next contends that the “evidence used was illegal, with no search warrant.” The testimony against defendant was, for the most part, furnished by the little boy who described the acts committed on his body by the defendant. There was ample evidence to sustain the verdicts of the jury aside from any evidence obtained by the officers at the time of defendant’s arrest. There was no objection made at the time of trial that the evidence was obtained as a result of an unreasonable search and seizure with the exception that when the pictures were identified by the boy and offered in evidence his counsel stated, “For the record, I would like to object to the materiality of these things being received in evidence. ’ ’ The admission of the pictures in evidence was material as being corroborative of the boy’s testimony and as bearing on the intent of defendant. No particular or proper objection was otherwise then and there made indicating that the evidence had been improperly obtained by unreasonable search or seizure and apparently the court was not called upon to pass upon that particular claim. (People v. Kitchens, 46 Cal.2d 260 [ 294 P.2d 17 ].) Even though it may be assumed, which we do not, that the objection thus stated was a proper and sufficient objection, the evidence in relation to the facts was only incidental and corroborative of the boy’s direct testimony which completely described the acts committed on his body and which was sufficient in and of itself to show the commission of the offenses without the aid of that evidence. The testimony of the officers and of the complaining witness in reference to the pictures was admitted without objection and defendant admitted their presence in his room. No prejudicial error resulted and there was no sufficient objection or showing made that there was an unreasonable search and seizure. (People v. Spellings, 141 Cal.App.2d 457 [ 296 P.2d 889 ].)

Defendant makes other broad statements as to the claimed unfairness of his trial. We have carefully examined the entire record and find no justifiable grounds for this claim.

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

A petition for a rehearing was denied July 31, 1956, and appellant’s petition for a hearing by the Supreme Court was denied August 16, 1956.