People v. Koontz

DOOLING, J.

Defendant was charged in two counts with violations of Penal Code, sections 288 and 285, lewd conduct with a child and incest. He was found guilty of incest and not guilty on the other count.

Appellant’s daughter, then 13, testified that appellant met her and her twin brother on the street and took them to his apartment where, after sending the brother out to buy

[634]

cookies, he had an act of sexual intercourse with her. Appellant’s sole contention on appeal is that there was not sufficient evidence of sexual penetration.

On direct examination the little girl, not in answer to leading questions, gave clear and explicit testimony of penetration. On cross-examination in answer to leading questions as to whether she was sure that there had been penetration (i.e. “You are not sure . . . are you?”) she answered “No.”

While a physician testified that Vivian’s physical development was such that an act of intercourse with her by an adult could have occurred this, as appellant points out, falls short of proof of actual penetration and that proof must be found in the daughter’s testimony.

The ease is governed by the rule that conflicts in the testimony of a single witness are to be resolved by the trier of the fact. In

People

v.

Haywood,

131 Cal.App.2d 259 [280 P.2d 180] (a statutory rape case in which a 16-year-old girl gave conflicting testimony on direct and cross-examination as to whether there had been penetration) the court said at page 261: “It is, of course, fundamental that the credibility of a witness is for the determination of the trier of fact. Hence conflicts and inconsistencies in the testimony of an individual witness are to be resolved by the fact finding authority.

(People

v.

Frankfort,

114 Cal.App.2d 680, 700 [251 P.2d 401];