PEEK, J. I dissent. Virtually the entire testimony of the prosecutrix, and in particular that which related to the act of intercourse and the relative positions of herself and the defendant, is so incredible as to be wholly unworthy of belief. In fact not only is such testimony incredible, but it is an absolute physical impossibility that the act could have occurred in such a manner.
At the outset we are confronted with that type of offense so frequently referred to as one so easy to charge but so difficult to disprove. With that admonition in mind, it appears to me that the evidence should be examined in greater detail than has the majority. This I believe to be particularly true in view of what I would term an inadequate transcript.
The record, except for the categorical denials of "the charge by the defendant, is without conflict. The defendant and the mother of the prosecutrix had never married. Approximately two years after the child was born the mother left her and the defendant, and for several years thereafter the child lived with the defendant. Approximately four years later the mother returned, and she and the defendant resumed their former relationship, during which period the prosecutrix was with them. Thereafter for a time she lived with her mother and apparently for a while with a grandmother. However, for the past several years she has lived with her father. According to her mother, the reason she was with her father was that “we just couldn’t get along at home.” The mention of home referred to the one made by the mother with her present husband who has children of a previous marriage also living with them. During the time the girl was with her mother there was difficulty concerning her relationships with boys. There was additional testimony by the father that he had similar difficulties with her, which testimony was corroborated by the owner of the house where they lived, and likewise corroborated by admissions on the part of the prosecutrix herself. This testimony referred to notes left at the home thanking her for her “favors” which notes were couched in unmistakably direct four-letter words. There was further testimony relative to numerous boys who came to the house, one of whom [583]the girl testified was “run out” by her father, and that on another occasion the father had called the police to remove a boy. Others were requested to leave by the landlady who in turn was told it was none of her business. The prosecutrix also testified she had run away from home on five occasions and had frequented a labor camp but not for several months prior to this proceeding. She further testified she had brought boys home unknown to her father. Additional testimony reflected a strictness on the part of the father in regard to these matters, such as a spanking in the presence of one boy with whom she was found “necking” in the rear seat of an automobile parked in front of her home. It is also noteworthy that during the time the girl was staying with her mother, and when she was approximately 9 years of age, she was involved in a case similar to this which occurred in Eureka and which resulted in a conviction. And even before that, when only approximately 4 years of age, she was likewise involved in a similar case while living with her grandmother in Corning.
In line with the comment of the trial court that possibly penetration did not occur, but that such fact was unimportant since it was not an element of the offense charged, the majority holds first that it is impossible to commit rape without also violating the provisions of section 288; and second, in any event, whether or not the testimony of the prosecutrix was improbable merely relates to the weight to be given the evidence, and that this is a matter solely for the trial court. I have no quarrel with such observations when taken as general statements of law, but I do quarrel with them when applied unqualifiedly to the facts in this case. Here the charge was predicated on one act—not a series of acts which would enable the court to reject some of the testimony as inherently improbable as it related to some of the acts charged, and to accept the testimony as to other acts. (See People v. Russell, 80 Cal.App. 243 [251 P. 699].) But to apply the rules enunciated in the majority opinion to one single act where the improbability of the testimony of the prosecutrix permeates the entire record, not alone does violence to common sense but blandly ignores the facts of life. This is not a question of merely proving facts sufficient to bring the case within section 288. This is a ease where the testimony, if accepted at all, proved too much. I cannot help but wonder if the majority would apply the same reasoning to a charge of speeding in a 55-miles-per-hour zone where the only testimony was that the vehicle involved was a 1901 model and that it [584]was being driven at a speed of 100 miles an hour. To be consistent it seems to me they must. But, says the majority, its conclusion is not necessarily unreasonable since, in order to attain such a speed, a 1901 model or not, did not the driver first have to reach 55 miles per hour? Or, even assuming it was not quite 100 miles an hour as the only testimony showed, such variance is still unimportant since anything over 55 miles an hour was prohibited, and equally unimportant was the fact the car was a 1901 model which, under no stretch of the imagination, could ever have reached a speed of 55 miles per hour even in its younger years.
I simply cannot accept the incredible testimony of the prosecutrix, nor can I accept the rationalization thereof by the majority. The judgment should be reversed.
A petition for a rehearing was denied April 2,1959. Peek, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied May 6, 1959. Schauer, J., was of the opinion that the petition should be granted.