Opinion
For Opinion on Hearing, see 69 Cal.Rptr. 595, 442 P.2d 675 Thomas C. Lynch, Atty. Gen, William E. James, Asst. Atty. Gen., and David Gould, Deputy Atty. Gen., for plaintiff and respondent.
Richard S. Buckley, Public Defender, Charles A. Maple and James L. McCormick, Deputy Public Defenders, for defendant and appellant.
STEPHENS, Associate Justice.
Defendant Baker was held to answer at a preliminary hearing. A two-count information was then filed against him by the District Attorney of Los Angeles County. In the first count defendant was charged with violation of Penal Code section 261, subd. 3 (forcible rape) and in the second count, with violation of Penal Code section 285 (incest). A not guilty plea was entered at the trial, and two alleged priors were denied. The matter was submitted on the transcript of the preliminary hearing. Defendant was found guilty count II, and count I was ordered dismissed. A probation report was ordered. Two doctors were appointed to examine the defendant. A notion for a new trial was made and denied; probation was also denied. The defendant was sentenced to the state prison for the term prescribed by law. No disposition was made on the priors. The defendant appeals from the judgment.
During the early morning hours of June 19, 1966 defendant went to the home of the daughter of his half-sister. The niece lived there with her three children and a man named Willie Morris. She had gone to bed on the couch attired in bra, panties, and a slip. The defendant knocked at the door, but the niece did not answer. Mr. Morris, who had not been home when defendant first arrived, returned and let defendant in. At the time the two men entered the house, the niece feigned sleep. Morris left and then returned, and upon his return, defendant asked him to leave, which he did. Defendant then told the niece that he wanted to have intercourse with her. She indicated her disapproval. There is testimony he struck her and she begged him not to carry out his intention. The entreaty was to no avail, and about a half-hour after the uncle had first entered the home, defendant had an act of intercourse with the niece. They spent the night together on the couch, and about 7:00 a. m. the following morning, again against the expressed wishes of the niece, a second act of intercourse took place. About the time of the second act, Mr. Morris returned and called the police. This account of the facts is taken solely from the testimony of the niece as given at the preliminary hearing. The only other witness at the preliminary hearing was the victim's mother, who testified that the defendant was her brother. Defendant's first contention on this appeal is that Penal Code section 285 (incest) and Civil Code section 59 (codification of degrees of consanguinity within which marriages are declared by law to be incestuous and void) do not cover the relationship between an uncle by the half blood and his niece for criminal purposes. Defendant presents many cogent arguments to sustain this contention. However, we feel compelled to follow the case of People v. Womack, 167 Cal.App.2d 130, 334 P.2d 309, 72 A.L.R.2d 703, a case on all fours with the instant case. (But compare State v. Bartley, 304 No. 58, 263 S.W. 95.) It would be intolerable to have conflicting opinions within an appellate district upon a legal principle so definite in nature. We recognize that no request for hearing in the Supreme Court was made in the Womack case, despite the importance of the issue. That such a request will be made in the instant case. there should be little doubt, and then the issue may be set to rest.
Pen.Code § 285: 'Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not less than one year nor more than fifty years.'
Civ.Code § 59: 'Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.'
Annotated in 72 A.L.R.2d 703.
Defendant's second contention is that the dismissal of the first count indicates that the niece must have been a willing participant in the act of intercourse; that she must therefore have been an accomplice in the act of incest, and that the uncorroborated testimony of an accomplice is insufficient to sustain the conviction. It is true that the uncorroborated testimony of a willing participant in the incestuous act is insufficient evidence to sustain a conviction under Penal Code section 285. (People v. Roberts, 82 Cal.App.2d 654, 656, 187 P.2d 27.) This follows the general rule that the testimony of an accomplice must be corroborated. 'Whether a witness for the prosecution is or is not an accomplice may be a question of law or fact. Where the facts with respect to the participation of a witness in the crime for which the accused is on trial are clear and not disputed, it is for court to determine whether he is an accomplice; but where, although there is evidence tending to connect the witness with the crime, the facts are disputed or susceptible of different inferences, the question of complicity should be submitted to the [trier of fact]. [Citations.]' People v. Jones, 228 Cal.App. 2d 74, 94, 39 Cal.Rptr. 302, 314.) In the instant case, there is ample evidence that the niece was an unwilling participant. The trial court, as the trier of fact, must have concluded that the niece was not an accomplice, and we can draw no inference to the contrary from the dismissal of count I. It is not for the appellate court to second guess the reasoning of the trier of fact below in his determination to dismiss one of the charges in the interest of justice. If the defendant has the benefit of the leniency of the trier of fact, that is to his advantage. In the instant case, the judge sitting as the trier of fact might well have been concerned with the problem of multiple punishment prohibited by Penal Code section 654, and determined to dismiss the severer of the two counts. Ours is not to reason why.
The judgment is affirmed.
KAUS, P.J., and HUFSTEDLER, J., concur.