People v. Romero

In an information filed by the District Attorney of Santa Barbara County, defendant was charged in case No. 102614 with annoying and molesting a child under the age of 18, a violation of Penal Code section 647a. A prior 1972 conviction for violation of Penal Code section 288 in case No. 96900 was alleged. Defendant pleaded not guilty and denied the prior conviction. Defendant made a motion to withdraw the denial of the alleged prior conviction and then admitted the prior. Trial was by jury, and defendant was found guilty as charged. Defendant’s motion for new trial was denied, as was his motion to strike the admission of the prior conviction. In case No. 96900 probation was revoked, and defendant was sentenced to the Department of Corrections in accordance with the previously imposed suspended sentence. In case No. 102614 probation was denied, and defendant was sentenced to the Department of Corrections for the term prescribed by law, to run concurrently with the sentence imposed in case No. 96900. Defendant appeals from the judgment in case No. 102614.

Facts

On Januaiy 12, 1974, defendant went to his ex-wife’s home and picked up his two daughters—Sally, age 16, and Cathy, age 17. He took them to his married daughter Debbie’s home, where Debbie was having a party to celebrate the birthday of her son. Sally assisted Debbie in preparing the food and decorating the home, while defendant and Cathy went shopping. They eventually returned and took Sally shopping with them. When they returned to Debbie’s home, the birthday party began. Defendant mixed some alcoholic drinks for both Sally and Cathy; he called them “dishwater drinks” because they contained whiskey, vodka, orange juice, 7-Up, Coke, and other things. Sally did not ask defendant for the drink, but he told her that if she did not drink, then she was not his daughter; as a result, she drank it. Thereafter, defendant, Sally, Cathy, and another person left Debbie’s to go to various homes of different relatives. They eventually ended up at the home of defendant’s son, Frankie.

There was a birthday party in progress at Frankie’s home. Defendant continued to have drinks of an alcoholic nature and, at one point, engaged in a conversation with Sally, Frankie, and Frankie’s girl friend, Becky, about sex. For example, he told Sally he knew that she and her

Defendant and Sally went back to the car, where they found Cathy was sick. Sally returned to the rear seat of the car. Defendant was talking to Cathy, then he came toward Sally and began kissing her. Sally turned to the side and just lay down, attempting to resist defendant, but he pushed down on her face with his hands. He leaned over toward her and began kissing her again. Thereafter, Cathy turned around quickly, observed what defendant was doing, and got scared. Defendant’s right hand came toward Sally’s left breast, but she prevented him from touching her. Frankie and his girl friend then arrived. Cathy got out of the car and went to Becky, and told her what she had seen. Defendant called Cathy over to the truck, talked to her and kept slapping her. Sally got in the back of Frankie’s pickup truck by herself. Defendant came up to her and said he was going to turn himself in, saying, “what I would do to get into your pants.” Then they all left to get gas. Once back home, Sally told her mother, Mrs. Romero, that defendant tried to force himself on her again. As a result, Mrs. Romero called the police.

On January 17, 1974, Detective Brenda Cook of the Santa Barbara Police Department called defendant and requested that he come to the police station. When defendant walked into the interview room at the station, he said voluntarily, “What is this all about? I have been hearing stories about child molesting.” Cook then told defendant that before they could discuss it she would have to advise him of his Miranda rights, which she proceeded to do. Then she began to question defendant concerning Sally’s story to her. Defendant initially denied Sally’s allegations, but subsequently during the interview he did admit making certain statements to her. He made reference to previous sexual activities with both Debbie and Sally. With respect to Sally, he stated that in 1968 or 1969, “I did it to her between her legs”; he added that Sally had never filed a complaint against him regarding that incident. He explained that

Even assuming, arguendo, that the offense of contributing to the delinquency of a minor is necessarily included in the offense defined in section 647a, the mere fact that it is so included does not require the court to give such an instruction as that requested by defendant. Whether the jury should be instructed to that effect depends upon the circumstances and evidence in the case under consideration. In a criminal case, instructions are to be given or refused depending upon the facts introduced before the jury. (People v. McCoy, 25 Cal.2d 177 , 188 [ 153 P.2d 315 ]; People v. Moody, 216 Cal.App.2d 250 , 255 [ 30 Cal.Rptr. 785 ]; People v. Romersa, 111 Cal.App.2d 173 , 177 [ 244 P.2d 98 ].) For example, in People v. Moody, 216 Cal.App.2d 250 [ 30 Cal.Rptr. 785 ], the defendant was charged with violating Penal Code section 288. The evidence showed that he admitted to police officers that he had engaged in the conduct specifically proscribed by that section. The trial court refused to instruct the jury with respect to the lesser included offense of section 272, even though People v. Greer, 30 Cal.2d 589 , 598 [ 184 P.2d 512 ] had held that the latter was necessarily an included offense in a section 288 violation. In Moody, the court stated (at p. 254): “[TJhere was no basis for an instruction as to included lesser offense. If appellant had stated that he had merely taken the three young girls into the back room of his barbershop but had denied touching them as testified to by them and admitted by him, there would then have been a basis for giving an instruction as to the lesser and included offense of contributing to the delinquency of a minor. But in view of the virtually uncontradicted evidence the instructions requested were properly refused.” (See also People v. Morrison, 228 Cal.App.2d 707 , 714 [ 39 Cal.Rptr. 874 ].)

The general rule applied in Moody, which is applicable to the instant case, is that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense. (People v. Pijal, 33 Cal.App.3d 682 , 691-692 [ 109 Cal.Rptr. 230 ]; People v. Morrison, supra, at p. 713.) In the present case, as in Moody, defendant admitted to Officer Cook that he did engage in the conduct prohibited by section 647a. Because of the testimony of the complaining and corroborating prosecution witnesses, the testimony relating to defendant’s admissions, the nature of defendant’s defense, and the lack of any defense evidence, defendant should be found guilty, if at all, of violating section 647a. Accordingly, the court

The judgment is affirmed.

Ashby, J., and Hastings, J., concurred.