People v. Doyle

FOURT, J.

This is an appeal from a judgment wherein the ■ defendant was convicted of contributing to the delinquency of a minor, a lesser but included offense contained in the information.

In an information filed in Los Angeles County, the defendant was charged with a violation of section 288 Penal Code. The information set forth that on March 20, 1958, the defendant committed a lewd and lascivious act in violation of the provisions of section 288 upon the body, members and private parts of a named 10-year-old girl by touching and feeling 'the body of said child with intent then and there of arousing, appealing to and gratifying the lust and sexual desires of the child and of the defendant. Defendant pleaded not guilty and was tried before a court without a jury and found guilty of contributing to the delinquency of a minor.

A résumé of the facts is as follows: the child in question was a -10-year-old girl enrolled in the fifth grade of the Glassell Park School. On a morning during the latter part of March, 1958 the child left her home about 8 :45 o ’clock to attend

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school. She was walking and while passing by the defendant’s house, the defendant offered her a ride in his car and she accepted. When the child was inside the automobile the defendant showed her a magazine containing some lewd pictures and the picture of a woman “with tiger pants on.” The defendant asked the child what kind of pants she had on and with that lifted up her dress. He touched her stomach and inside and outside of her undergarments. The touching went on for several minutes while defendant and the child were in the automobile in front of the defendant’s house. The defendant then drove the car with the child to her school and told her not to tell anyone. When the child arrived at the school about 9 a.m. she was crying and told a girl friend what had occurred. The child was taken to her teacher and the school clerk where she complained of what she had experienced.

The judge said at the conclusion of the testimony of the witnesses:

“Now, of course, you have to analyze just what Section 288 is. In the ordinary case we consider a 288 case where the male or the female, as the case may be, is fondling the private parts of the youngster involved. I have jotted down a few notes here as to what this little girl’s testimony was. I am not satisfied that he actually touched the private parts of this girl but I am satisfied that he did put his hands on her stomach, moved his hand down in the vicinity of her private parts, he touched her skin and then he showed her the magazine with the nude or near-nude pictures in there in an effort not only to arouse her passion but to arouse his own. I do not know and I will give the defendant the benefit of the doubt as to whether or not actually a 288 has been committed here.