People v. Codina

SPENCE, J. Defendant was tried by a jury upon an information charging him in separate counts with (1) lewd and lascivious conduct in violation of section 288 of the Penal Code, a felony, and (2) contributing to the delinquency of a minor in violation of section 702 of the Welfare and Institutions Code, a misdemeanor. The alleged victim was a six-year-old girl. Defendant was acquitted on the first count and convicted on the second. Pie has appealed from the judgment and the order denying his motion for a new trial.

As grounds for reversal defendant argues the following points: (1) the deficiency in the pleading of count two to sustain a conviction; (2) the inconsistency of the verdict since both counts were based on the same act or occurrence, so that an acquittal on one would preclude a finding of guilt on the other; (3) the insufficiency of the evidence to support the verdict on count two; and (4) prejudicial remarks of the prosecuting attorney in his closing argument to the jury. An examination of the record in the light of applicable rules of law compels the conclusion that defendant’s arguments are without merit, and that the judgment of conviction should be affirmed.

Taking up defendant’s several points in their order of presentation, the first to be considered is his challenge of the sufficiency of the pleading of count two, on which he stands convicted. That count charges a violation of section 702 of the Welfare and Institution Code, “contributing to delinquency of minor.” It alleges that defendant committed a lewd and lascivious act upon the person of the minor child involved but, as defendant notes, it does not allege that such act “caused or tended to cause or encourage” said minor child “to become a person of the character described in section 700 of [said] code.” Defendant claims that such omission of recital as to “the tendency.of” his alleged act renders count two fatally defective in the statement of “a public offense” under the “Juvenile Court Law.” (People v. Salisbury, 59 Cal.App. 299, 300 [210 P. 642] ; People v. Lamanuzzi, 77 Cal.App. 301, 303 [246 P. 557].) But these cited cases were decided before the amendments of 1927 and 1929 liberalizing the rules of pleading in criminal prosecutions. As [359]amended in 1929, and as it now reads, section 952 of the Penal Code expressly provides that “ [I] n charging an offense . . . it [the statement] may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.” (Emphasis added.)