People v. Wells

DRAPEAU, J.

Defendant pleaded guilty to violation of Penal Code, section 288,—misconduct with a 5-year-old girl. Also he admitted a prior felony conviction of burglary and grand theft, for which he served a term of imprisonment.

After taking his plea, the superior court suspended further proceedings, adjudged defendant a sexual psychopath, and committed him to a state hospital. (Welf. & Inst. Code, div. 6, pt. 1, ch. 4.)

After a year and a half in the hospital, defendant was returned to the superior court for further proceedings, and was granted probation.

After defendant was out on probation for a year and three months, he was returned to court, his probation was revoked, and he was sentenced to the penitentiary. He appeals from this judgment.

At the hearing on revocation of probation it appeared that defendant had again misconducted himself with children; this time with two little girls, one 3 years of age, the other 5% years of age. At the hearing, a medical expert reported that defendant was ‘ ‘ an aggressive type of sexual psychopath of long standing, who will undoubtedly repeat his offense against children, and represents a perpetual hazard to the community.”

The only question on this appeal is whether the sexual psychopathy proceedings of the Welfare and Institutions

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Code should have been gone through with again?—Whether there should have been another hearing and commitment of defendant to a mental hospital before probation was revoked and judgment was pronounced for the offense to which he had pleaded guilty?

If this had been a prosecution for the two sex offenses last committed by defendant, subdivisions b or c of section 5501 of the Welfare and Institutions Code would have applied.

But this proceeding was to revoke probation. (Pen. Code, § 1203 et seq.) All the provisions of the sexual psychopathy -law had been complied with. Defendant had been to the mental hospital and had been returned to the superior court. He had been granted probation and had violated the terms of the clemency extended to him. He had had his chance. So it was the right of the trial court under section 1203.2 of the Penal Code to terminate defendant’s probation and to pronounce judgment. It is proper to revoke probation when a defendant pleads guilty to a second offense committed during the time he is on probation.