People v. Blankenship

JENNINGS, J.

Defendant was charged with the crime of statutory rape of which, upon arraignment, he entered a plea of guilty and made application for probation. The court appointed a date for hearing the application and referred the same to the probation officer for his report. On the appointed date the probation officer’s report was submitted and evidence was presented which related to the circumstances surrounding the commission of the offense and the past history of the defendant. Among the facts which were exposed during this examination it appeared that the defendant was then almost 23 years of age and the female upon whom the crime was perpetrated was 13. It also appeared that medical examination of the parties showed that both were afflicted with syphilis. There was, however, no positive evidence which showed that the defendant had communicated the disease to the girl. Upon

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the conclusion of the hearing the court indicated that it was disposed to grant defendant’s application upon conditions which the court characterized as “rather stringent”. Judgment was thereupon pronounced whereby the defendant was sentenced to confinement in San Quentin prison. Execution of the judgment was suspended for a period of five years upon certain conditions, only one of which is material on this appeal. This condition was that within ten days from the date of the order suspending execution of the sentence the defendant should submit to an operation for sterilization. Thereafter and on the eleventh day succeeding the date of the aforesaid order the defendant, through his counsel, presented to the court a motion to modify the order by striking therefrom the above-mentioned condition. Upon the hearing of this motion evidence was produced which tended to show that the disease of syphilis is curable and that defendant was willing and financially able to secure medical treatment for elimination of the disease from his system. The court took the motion under advisement for a period of two days, at which time it denied the motion and revoked its former order suspending execution of sentence on the ground that defendant had failed to comply with the conditions upon which the order was made within the time specified in the order. Defendant thereupon appealed from the order denying his motion for modification and from the order revoking the prior order of suspension.

It will here be assumed that the orders are appealable and that appellant gave notice of appeal in the manner and within the time specified in the code.