People v. Avelar

FOX, P. J.

Defendant was convicted by the court, sitting without a jury, of violating Penal Code section 261, subdivision 1, statutory rape.

The prosecuting witness testified that she was 17 years of age; as to the date of her birth; that she was not married to the defendant, and that she had had two acts of sexual intercourse with the defendant prior to her 17th birthday. She further testified that these acts were two or three weeks apart, and occurred in the defendant’s room in the afternoon during August 1959, some time after the fourth of the month.

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[633]

Mrs. Herrera, who was the next witness, testified that she was the mother of the complaining witness, as to the girl’s age, and when she was born. On cross-examination Mrs. Herrera was asked:

Q. “Now, do you remember when your daughter reported this incident that she testified to, to the police department . . .” This was objected to as beyond the scope of the direct examination. The objection was sustained.

Counsel for the defense thereupon called the mother, Mrs. Herrera, as his own witness. The following then transpired:

Q. “Mrs. Herrera, you and Mr. Avelar [the defendant] were co-owners of a 1956 Mercury automobile; is that right? A. That’s right. . . .

Q. “Now, do you recall going to the home of Mrs. Frances Ortiz about the time that Mr. Avelar [the defendant] was arrested by the immigration authorities? A. Yes.

Q. “And she had the possession of this 1956 Mercury didn’t she? A. Yes.

Q. “Now, do you remember making a demand for that automobile of Mrs. Ortiz, wanting to take the car?”

This was objected to as immaterial. The objection was sustained. Defense counsel remarked:

“This is foundational, your Honor. I am laying a foundation. ’ ’

Counsel for the defense then made the following offer of proof: “that this witness went to the home of Mrs. Ortiz and demanded possession of this 1956 Mercury car which was registered to her and Mr. Avelar, and had Mrs. Ortiz refused to give it to her she told Mrs. Ortiz in front of other witnesses that if she did not get the car she was going to file on behalf of her daughter a rape charge against the defendant.” The People’s objection to this offer of proof was sustained.