People v. Montanez

WHITE, P. J. Defendant was charged by information with the crime of violation of section 288 of the Penal Code, in that on October 2, 1948, he committed a lewd and lascivious act upon the body of a certain 5-year-old child with the intent of arousing, appealing to and gratifying the lusts, passions and sexual desires of the said child and the defendant. Trial by jury was waived by the defendant, his counsel and the district attorney, and it was stipulated that the People’s cause be submitted on a transcript of the preliminary hearing, with the right on either side to put on additional testimony. Defendant was adjudged guilty and permitted to apply for probation. Probation was denied and judgment and sentence pronounced. The present appeal is from the judgment.

The sole ground urged for reversal is that the evidence is insufficient to support the judgment. The following recital of the testimony will demonstrate that this contention is without merit.

The complaining witness testified at the preliminary examination that she went to Sunday school and knew what happens to little girls that do not tell the truth; that the oath meant that she was to tell the whole truth. On Saturday afternoon she went to a park with her brothers. She saw defendant at the park; he was sitting down, and he followed wherever she went. She was playing ball with her brothers; she was chasing the ball when she went close to the defendant, who “got me and laid me on the grass,” and took out his sex organ and touched her on her panties and put his hand on her back beneath her panties. The defendant then told the other children to have a race. While the other children were racing defendant took the complaining witness into the men’s restroom, holding her by the wrist; that while in there he again took out his sex organ and made the witness touch it. She then went outside, crying, and went home. On cross-examination she testified that defendant promised her a nickel but did not give it to her; that he had a gun which he said was a “cap” gun.

The mother of the child testified that the child came home [495]scared, shaking and perspiring, and said that something “bad” had happened at the park.

In his own behalf defendent testified that after visiting a friend he went downtown to have a beer, decided to go to an employment office, and took a short cut across the park. When he got to the park he went to the restroom. He saw some children while walking across the park; the complaining witness was one of them; that the children asked where he was going and asked if he wanted to see them play a race, which he did. They then asked him for money to go to a show and he told them he did not have any. That he did not get to the employment office because it closed at noon on Saturday. Defendant was apprehended an hour or so after leaving the park. He denied the criminal acts testified to by the child. On cross-examination he was asked if he remembered denying to the officers that he had been in the park. He replied that he did not understand what they meant. He admitted denying that he had seen the child, and admitted sitting on the park lawn near the men’s restroom for about five minutes. He denied stating to the arresting officers that the little girl followed him into the restroom. He was asked if while he was in the men’s room some other men were there, to which he answered in the affirmative. He was asked if that was before or after the little girl was there, and he replied it was before. However, subsequently he testified that the child did not go into the toilet at any time he was there; that he did not take the child’s hand and make her touch his penis, because he was in the men’s room alone except for the presence of other men who did not remain there very long.