People v. Zeihm

Opinion

COMPTON, J.

Pursuant to Penal Code section 1238, subdivision (a)(1), the People appeal from an order of the superior court setting aside an information under Penal Code section 995.

Defendants Zeihm, Cichy and Rogers were charged in the information with two counts of conspiring to violate Penal Code section 288a, four substantive counts of violation of Penal Code section 288a and one count of violation of Penal Code section 261.5 (sexual intercourse with a female under the age of 18 years). Defendant Coffman was charged in the two conspiracy counts and two of the substantive counts of violation of Penal Code section 288a.

The charge of violating section 261.5 of the Penal Code had been dismissed following the preliminary hearing by the magistrate stating as follows: “With respect to Count VII, the Court finds from the facts as elicited by the testimony that the People have failed to show that the requisite intent was present on behalf of any of the defendants named in Count VII

because of the reasoning stated in People vs. Hernandez,

61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]. The Court, entertaining no strong suspicion as to the guilt of any of the defendants

because of that particular decision,

orders that count to be dismissed.” (Italics added.)

Since defendants had been committed to the superior court on the remaining charges, the district attorney repleaded the “statutory rape” charge in the information pursuant to Penal Code section 739.

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The

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superior court in granting the 995 motion as to the rape charge stated no grounds therefor, but as to the remaining charges based its ruling on the determination that Penal Code section 288a is unconstitutional.

The case against the defendants as presented before the magistrate rested principally on the testimony of three young women, one of whom was 14 years of age. They testified essentially that they performed acts of sexual intercourse and oral copulation with various individuals during the course of a commercial movie-making venture in which the defendants participated variously as performers, camera operators and producers.