People v. Smith

BROWN, P. J. Ronald Wayne Smith appeals from a judgment of conviction entered upon a jury verdict of lewd and lascivious acts (Pen. Code, § 288).

On March 19, 1964, 13-year-old Marie Gabaldon accepted defendant’s offer of a ride to a high school to pick up Marie’s sister. According to Marie, defendant drove beyond the school, stopped on a dead-end dirt road, and raped her. Released, she cleaned herself up at a market restroom and returned home too afraid to tell anyone about the rape. She first told her mother about it six months later. On the date of the rape, Marie had just finished a seven-day menstrual period. At trial, on October 26, 1964, she claimed to be seven and one-half months pregnant.

Defendant contends Marie’s testimony is inherently improbable and the evidence is insufficient to support the conviction. Neither is her testimony totally unworthy of belief, nor is her claimed conception just after finishing a menstrual period, although highly improbable, physically impossible. (People v. Headlee, 18 Cal.2d 266 [115 P.2d 427]; People v. Penrice, 195 Cal.App.2d 360 [15 Cal.Rptr. 733]; People v. Carr, 133 Cal.App.2d 783 [248 P.2d 977].) Marie’s testimony [491]alone is sufficient to support the conviction. (People v. Breeden, 213 Cal.App.2d 343 [28 Cal.Rptr. 693]; People v. Stampher, 168 Cal.App.2d 579 [336 P.2d 207]; see People v. Sylvia, 54 Cal.2d 115 [4 Cal.Rptr. 509, 351 P.2d 781].)

Defendant asserts incompetent representation by counsel effected a denial of his right to counsel. Defendant complains of counsel’s failure to call an expert witness, a gynecologist, to testify to the high improbability of conception; of counsel’s refusal to subpoena defendant’s employer’s plant manager and a fellow employee, whose testimony purportedly would have buttressed defendant’s defense, as revealed by his time card admitted into evidence, that he left work at 3 :33 p.m., 20 miles from the location of the alleged rape. Marie testified the incident occurred about 3:20. An examination of the record shows counsel’s failure to procure these witnesses did not reduce the trial to a farce or sham, as required for reversal (People v. Ibarra, 60 Cal.2d 460 [34 Cal.Rptr. 863, 386 P.2d 487]; see In re Rose, 62 Cal.2d 384 [42 Cal.Rptr. 236, 398 P.2d 428]).

Defendant contends the trial court erroneously allowed the district attorney to introduce evidence of two other instances of defendant contributing to the delinquency of a minor. This evidence is that defendant in 1963 removed the clothing from the body and private parts of one minor girl and touched, rubbed and fondled the body of another minor girl. The Attorney General argues the evidence is admissible to prove the requisite lewd intent (Pen. Code, § 288). At trial, however, Marie described a rape which, if committed, sufficiently established lewd intent and precluded a defense based on innocent intent. The evidence, therefore, while adding nothing to the People’s proof of intent, impressed upon the jury defendant’s disposition toward committing criminal sexual acts. There was no justification for resorting to mere cumulative evidence the probative value of which was overwhelmingly outweighed by the prejudicial inference of criminal disposition. (People v. Baskett, 237 Cal.App.2d 712, 718 [47 Cal.Rptr. 274].)