People v. Paris

ADAMS, P. J.

Appellant was charged with a violation of section 288 of the Penal Code, the charge being that on November 20, 1942, in Sacramento County, he did “willfully and unlawfully and feloniously place his hands upon and fondle the private parts of” a child of the age of seven years “with intent then and there of arousing, appealing to and gratifying the lust and passion and sexual desire of said George Paris, ’ ’ etc. He was found guilty as charged, and, his motion for a new trial having been denied, was sentenced to be imprisoned in the state prison for the term provided by law. On this appeal he contends that the verdict is entirely unsupported by the evidence in that the evidence shows that the crime committed was not that charged in the information but was in fact rape, that while rape is lewd and lascivious conduct it is not the kind of lewd and lascivious conduct charged, and that there was not only a failure of proof, but a fatal variance between the charge and the evidence.

A similar contention was made in

People

v.

O’Donnell,

11 Cal.2d 666 [81 P.2d 939], where the defendant was charged with lewd and lascivious conduct under section 288 of the Penal Code, and, in a second count, with rape. On his conviction on both counts he was sentenced to San Quentin on the charge of violating section 288, but, because of a recommendation of the jury on the rape charge, was sentenced on that count to imprisonment in the county jail, the sentences to run concurrently. On appeal it was conceded that the evidence supported the conviction on the rape charge but it was contended that it was insufficient to support the other. There the

[701]

victim of the offense was a child of the age of three years, and the proof that she had been raped and that defendant had committed the offense was physical evidence. The court said, p. 669:

“It is difficult to understand why the jury, having found defendant guilty of rape, could have made the recommendation it did. It is admitted that' the evidence is sufficient to sustain that charge, but it is claimed there is no evidence tending to show that appellant violated section 288 of the Penal Code. In this connection it is claimed that the lewd and lascivious acts were part of and became merged in the rape charge, for which reason appellant could not be punished under the provisions of section 288 of the Penal Code. The fact that appellant was convicted upon the charge of rape does not necessarily prevent him from being punished under section 288 for any of the acts committed prior thereto. If any one of the antecedent acts of lewd and lascivious conduct was committed without the intent to commit rape, but simply to gratify appellant’s lustful passion, and then later, emboldened by his success and further inflamed with passion, he conceived the further nefarious intent to penetrate the body of the child, the antecedent acts prior to the rape are punishable under the section involved. ’ ’ Citing