People v. Conterno

McCOMB, J.

From judgments of guilty on two counts of statutory rape after trial before the court without a jury, defendant appeals.

Viewing the evidence in the light most favorable to the People (respondent), the essential facts are:

Defendant on two occasions had an act of sexual intercourse with the prosecuting witness, a female sixteen years of age.

Defendant relies for reversal of the judgments upon two propositions which will be stated and discussed hereunder seriatim.

First: There is no substantial evidence to sustain the findings upon which the judgments were necessarily predicated.

This proposition is untenable. An examination of the record discloses substantial evidence which, taken together with inferences which the trial judge may have reasonably drawn therefrom, sustains each and every material finding of fact upon which the judgments were necessarily predicated. For example, the prosecuting witness gave positive testimony that on two separate occasions defendant took her to his apartment and there had an act of sexual intercourse with her. Further discussion of the evidence is unnecessary. (See

People

v.

Pianezzi,

42 Cal. App. (2d) 265, 269 [108 P. (2d) 732].)

Second: The trial judge committed prejudicial error in receiving in evidence a diagram drawn by the prosecuting wit

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ness subsequent to the date of the alleged acts of sexual intercourse, which diagram purported to represent defendant’s apartment, where the prosecuting witness testified the alleged acts of sexual intercourse had occurred, for the reason that such diagram constituted hearsay evidence.

The foregoing proposition will not be considered by this court for the reason that the objection which defendant now makes to the reception of the diagram in evidence, to wit, that it was hearsay evidence, was not urged in the trial court. Therefore, such objection was waived.