Opinion
Cr. 2738
6-13-1957
The PEOPLE of the State of California, Plaintiff and Respondent, v. Leroy CARSKADDON, Defendant and Appellant.*
Robert O. Fort, Sacramento, for appellant. Edmund G. Brown, Atty. Gen., by Doris H. Maier and J. M. Sanderson, Deputies Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Leroy CARSKADDON, Defendant and Appellant.*
June 13, 1957.
Hearing Granted Aug. 6, 1957.
Robert O. Fort, Sacramento, for appellant.
Edmund G. Brown, Atty. Gen., by Doris H. Maier and J. M. Sanderson, Deputies Atty. Gen., for respondent.
VAN DYKE, Presiding Justice.
Appellant was convicted of violating Section 647a of the Penal Code. He appeals from the judgment. The evidence was all testimonial, and a full narrative statement follows. Anthony Bakazan, on April 198 1956, at Southside Park in Sacramento city, stopped his automobile at a April 19, 1956, at Southside Park in Sacramento appellant take a little girl, aged 6, and a little boy, aged 4, underneath a big tree about 30 feet inside the park. He saw them sit there a short while. Then the boy left and the girl remained. While they were under the tree, Bakazan walked back and forth a few times, watching appellant. The latter moved in such a manner as to obscure Bakazan's view, making it difficult for him to see what appellant was doing. Bakazan during all this time, however, was from 10 to 30 feet distant from appellant and the child and had a full view of appellant for all but about a minute of the ten minutes during which appellant and the girl stayed under the tree. He did not see appellant touch the child. At the end of about ten minutes appellant and the child walked from under the tree, circled a small lake or pond that is in the park and approached a concession stand where appellant bought the child an ice cream bar. Bakazan followed. The pair were under his observation at all times. Bakazan never spoke to appellant. Appellant and the girl walked on up the street in a direction away from the park and toward the Sacramento River. Bakazan continued to follow and to watch, until a motorcycle officer came along. Bakazan called his attention to appellant and the girl. The officer made a U turn on his cycle and approached appellant. Appellant saw him and started to walk ahead of the child when the officer stopped him. From an identification tag around the girl's neck the officer ascertained that she lived across the park and in the oppsite direction from the direction in which appellant and the child were walking. The officer asked appellant if the child was his, and appellant said no. The officer asked where he was taking the child, and appellant said she was lost and he was taking her home, after which he intended to take a bus to an outlying portion of the city. In appellant's presence, the officer asked the little girl if appellant was taking her home, and she said no, that he was taking her down the river to show her--(The officer's testimony was interrupted at this point. He did not finish relating what the child said.) The officer did not see appellant make any motions with his arms or any other part of his body except that he walked along with the child. They were walking along side by side down the street.
Section 647a, subdivision (1), of the Penal Code provides: 'Every person who annoys or molests any child is a vagrant and is punishable upon first conviction by a fine of not exceeding five hundred dollars ($500) or by imprisonment in the county jail for not exceeding six months or by both such fine and imprisonment and is punishable upon the second and each subsequent conviction by imprisonment in the state prison not exceeding five years.'
It has been held the object of the enactment is the protection of children from interference by sexual offenders and the apprehension, segregation and punishment of the latter; that the words 'annoy' and 'molest' are synonymously used and mean conduct fitted to disturb or irritate or offend; that these words are used in the section with reference to offenses against children with a connotation of abnormal sexual motivation on the part of the offender; that, although no specific intent is prescribed as an element of the offense, a reading of the section as a whole in the light of the evident purpose indicates that the acts forbidden are those motivated by such unnatural or abnormal sexual interest or intent with respect to children; that the annoyance or molestation which is forbidden is in no sense a purely subjective state on the part of the child, but that the objectionable acts of defendant constitute the annoyance or molestation contemplated by the statute. People v. Moore, 137 Cal.App.2d 197, 290 P.2d 40. The opinion cited proceeds to state that it is settled the element of annoyance as provided in subdivision 1 of the section is concerned with the objectionable acts of the defendant which complete the offense, and that if the conduct of a defendant is so lewd or obscene that the normal person would unhesitatingly be irritated by it, such conduct would annoy or molest within the purview of Section 647a, subdivision 1, of the Penal Code. In People v. McNair, 130 Cal.App.2d 696, 279 P.2d 800, the court was presented with a case where there was no contact with the child involved who was playing in a yard overlooked by a window of the defendant's room, at which window he lewdly and obscenely displayed his naked body in view of the child. Thus, in both cases cited and in all that we have examined, there has been conduct toward the child involved, lewd, lascivious and obscene in its nature and fully authorizing, if not compelling, the inference of sexual motivation. However, we do not believe that objective obscenity is a necessary element. If, motivated by abnormal sexual interest, a person takes a child in charge and begins its abduction, the crime of annoying and molesting is complete.
We think it could be inferred here that the appellant's conduct toward the child was sexually motivated, although the evidence in that respect is far from satisfactory. Appellant was a stranger to the child. He had no authority or right to interfere with her movements in any way or to take control of her. He exhibited evasive tendencies while Bakazan watched him and the child under the tree. He left the tree with the child, and it is a fair inference that he at least suggested that she accompany him and so took her across the park to an ice cream stand, where he purchased ice cream for her. He then went with the child away from the park and toward the river. From the remark of the child in his presence it may be inferred that he was engaged in enticing her away from the area where he had been observed with her and toward the river where he might find better opportunity for accomplishing his will. The trier of fact could find appellant lied to the officer both as to why he took charge of the child and as to his intentions toward her. Guilty conduct and intent were here glaringly apparent, and when all this is considered, along with the age and sex of the child, sexual motivation is sufficiently made out.
The judgment is affirmed.
SCHOTTKY, J., and WARNE, J. pro tem., concur. --------------- * Opinion vacated 318 P.2d 4.