People v. Consigli

[105]

NOURSE, P. J.

Defendant was tried to a jury on an information charging a violation of section 288 of the Penal Code. Following a verdict of guilty defendant was sentenced on an order granting probation for a period of five years on condition that he be confined in the county jail for a period of 90 days and pay a fine of $250. He appeals from this order, from the judgment, and the order denying a new trial. The appeal is based on two grounds—the inherent improbability of the testimony of the prosecuting witness, and the failure to give a cautionary instruction relating to the testimony of another girl detailing another similar ofíense.

The prosecuting witness was a girl of 9 years. Before her testimony was taken she was carefully examined by the trial judge who ruled that she was competent. Briefly her story of the occurrence was that she and her two younger sisters had for some time been visiting in defendant’s home at his invitation to watch his television. Frequently she sat beside the defendant on the davenport watching the pictures while her sisters and defendant’s wife busied themselves in other parts of the house. She testified that on the night in question the defendant put one arm around her and with the other hand fondled her private parts. The defendant’s explanation of the occurrence was that they were watching wrestling matches on the screen and that when those matches became exciting he inadvertently “expressed his emotions” by pressure upon the girl’s legs. But the little girl testified that this pressure was always made underneath her clothing.

Appellant cites only

De Avellanes

v.

Avellanes,

151 Cal. 443 [90 P. 1059]. Respondent cites

People

v.

Carlson,

73 Cal.App.2d 933, 940 [167 P.2d 812];

People

v.

Huston,