People v. Doxie

MARKS, Acting P. J.

This is an appeal from an order denying defendant’s motion for a new trial and from the judgment pronounced upon him.

Defendant was charged with the violation of the provisions of section 288 and an attempt to violate the provisions of section 288a of the Penal Code, alleged to have been committed on the person of a little girl slightly less than five years of age. He was found guilty of the first and not guilty of the second offense charged.

Defendant' urges that the verdicts are inconsistent and that, as there was only one act involved, the verdict finding him not guilty of attempting to violate the provisions of section 288a of the Penal Code cannot be reconciled with the verdict finding him guilty of violating the provisions of section 288 of the same code.

It is well settled in California that inconsistent verdicts cannot be allowed to stand. It is equally well settled that in order to be inconsistent, verdicts must be rendered in response to charges of offenses the elements of which are

[513]

identical.

(People

v.

McCollum,

116 Cal. App. 55 [2 Pac. (2d) 432];

People

v.

Jameson,

136 Cal. App. 10 [27 Pac. (2d) 935 ].)

A reading of the two sections of the Penal Code involved here clearly demonstrates that the elements of the offenses defined in them are not identical. This is so evident that it should not be necessary to point out the dissimilarities here.

Defendant complains of the following instruction given to the jury:

“The fact that the answers of a child witness to questions of counsel consisted of words of one syllable is not of itself conclusive that she did not tell the truth about the defendant’s conduct towards her. If there is no inherent improbability in her account of the transaction, it is solely for the jury to determine whether her testimony is credible or otherwise; and in doing so you will be governed by the same rules as in determining the credibility of other witnesses as given you in another instruction.”