People v. Carskaddon

SPENCE, J.

Defendant appeals from a judgment of conviction for violation of section 647a, subdivision (1), of the Penal Code. He contends that the evidence is insufficient to sustain his conviction. The evidence is uncontradicted and although we have viewed it in the light most favorable to the prosecution

(People

v.

Moore,

137 Cal.App.2d 197, 200 [290 P.2d 40]), we have nevertheless concluded that defendant’s contention must be sustained.

On April 19, 1956, at Southside Park in Sacramento, Anthony Bakazan stopped his automobile at a street curb to eat lunch in his car. He saw defendant take a little girl, aged 6, and a little boy, aged 4, underneath a large tree about 30 feet inside the park. They sat there a short time; then

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Bakazan saw the boy leave while the girl remained. As Bakazan walked back and forth a few times, watching defendant, the latter would sometimes so move that the tree briefly obscured Bakazan’s view. However, Bakazan managed to keep 10 to 30 feet distant from defendant and the girl, and he had a full view of defendant for all but about a minute of the 10 minutes that they stayed under the tree. Bakazan did not see defendant touch the girl.

After some 10 minutes under the tree, defendant and the girl walked to a concession stand where defendant bought the girl an ice-cream bar. Bakazan followed, keeping the two under observation at all times. He never spoke to defendant. Defendant and the girl proceeded up the street in a direction away from the park and toward the Sacramento River. Bakazan continued to follow and to watch, until a motorcycle officer came along. Bakazan called the officer’s attention to defendant and the girl. The officer turned his motorcycle and approached defendant. Defendant saw the officer and started to walk ahead of the girl when the officer stopped him. In response to the officer’s queries, defendant stated that the girl was not his but that she was lost and he was taking her home, after which he intended boarding a bus to another part of the city. In defendant’s presence, the officer then asked the girl if defendant was taking her home. The officer testified that she replied, “No, he was taking her down the river to show her-” The officer’s testimony was interrupted at this point, and he did not complete his recital of the girl’s statement. The officer did not see defendant make any motions with his arms or any other part of his body toward the girl but only observed them ‘‘walking side by side down the street.”