People v. Akers

GRIFFIN, J.

Defendant and appellant, aged 42, was convicted by a jury on a charge of committing lewd and lascivious acts on a boy, 11 years old, in violation of section 288 of the Penal Code, in one count, and in a second count of the crime of sex perversion (oral copulation) in violation of section 288a of the Penal Code. He was sentenced to state’s prison, sentences to run concurrently on each count.

It does not appear from the record that a motion for new trial was made. Accordingly, the attempted appeal from an order denying such a motion must be dismissed.

[226]

The boy, Michael, here involved, testified, generally, that he was selling newspapers at a prominent corner in San Diego, near an inn or beer parlor, abont 4:30 p. m., and that he solicited a sale of one of his papers to defendant, who was just entering the inn to buy a drink of beer; that after defendant came out, the boy, not recognizing him, again asked him to buy a paper and defendant remarked “Come over to my room (across the street) and I will buy all of your papers.’’ Michael picked up about 20 papers and started to follow the defendant. Defendant remarked, “Walk a little ways behind, about six paces.’’ When they arrived, defendant unlocked the door to his room and asked the boy to let him see his penis. The boy then described in particular defendant’s conduct. In general, it consisted of helping the boy unzip his trousers and expose his penis and, for about five minutes, he committed the act of copulating the boy’s penis with defendant’s mouth. Thereafter the defendant told the boy to take off his clothes and sit on the bed and a similar act occurred for the next five minutes. Defendant then got up and went over to a drawer in the dresser, secured some pictures of nude women, and showed them to the boy. Defendant undressed himself except for his socks and then asked for the boy to pick out one of the pictures he liked best and made a vile suggestion as to it. Another similar act of copulation took place while they were in the nude on the bed and then defendant changed his position and started kissing Michael on the lips, sucking his nipples on his chest, and hugging him. He placed Michael’s hand on defendant’s private parts. He told Michael not to tell anyone and asked Tn'm if he would like to be his son and if he would, he would not have to sell newspapers any more and he would buy him a new bicycle. Michael described the sensation he felt during these occurrences and said he had never had such acts committed on him before. Defendant gave the boy only $1.50 for his 20 papers, which sold for 10 cents each, and said he had no more money left but if Michael would come back at 7 o’clock, he would give him $5.00. Finally, the boy told defendant he wanted to leave and defendant committed another similar act of copulation. Thereafter the boy dressed, opened the door and left with his 20 papers. Defendant was, at the time, still undressed except for his socks. Michael crossed the street and told the police, who had been called at the suggestion of another newsboy who saw the early part of this