People v. Bevans

MARKS, J.

Defendant was charged with violation of the provisions of section 288 of the Penal Code and also with violation of the provisions of the Juvenile Court Law. The other person involved was a girl of the age of eight years. He was convicted and sentences were pronounced upon him on both counts. He has appealed from the judgments and the order denying his motion for new trial.

Defendant presents but a single ground for a reversal of the judgments and order. He was sentenced on the same day during the same hearing. The judgment on the verdict finding him guilty of violating the provisions of the Juvenile Court Law immediately preceded the pronouncement of judgment on his conviction of violating the provisions of section 288 of the Penal Code. He contends that but one act was charged and proved; that the offenses were identical; that the judgment first pronounced was a bar to the second judgment. This argument tacitly admits the legality of the judgment under the count of the information charging violation of the provisions of the Juvenile Court Law.

Section 288 of the Penal Code provides for the punishment of certain described acts committed on the body of a child under the age of fourteen years. The Juvenile Court Law provides for the punishment of acts which contribute to the delinquency of persons under the age of twenty-one years. The acts punishable under the Juvenile Court Law include many not included within the provisions of section 288 of the Penal Code. The two statutes do not attempt to define identical offenses.

The contention of defendant has been decided adversely to him in the case of

People

v.

Coltrin,

5 Cal. (2d) 649 [55 Pac. (2d) 1161]. In that case the defendant was convicted

[290]

of abortion, and murder in the second degree, the death following the abortion. It was there said:

‘ ‘ The final contention is that in pronouncing sentence upon both counts the court violated section 13 of Article I of the Constitution and section 654 of the Penal Code relative to placing a person twice in jeopardy and imposing two punishments for one act. In this connection it is also argued that since judgment was first pronounced upon the abortion charge the court was without power to pronounce any judgment on the murder charge. Irrespective of the merits of the first of these contentions we think the order in which the verdicts were read, and in which the judgments were pronounced, is not material