People v. Young

JEFFERSON, J.

In an information filed by the District Attorney of Los Angeles County, defendant and codefendant (not appealing) were charged with the crime of sex perversion in violation of section 288a of the Penal Code. The information further alleged defendant Young had suffered a prior conviction of a felony, to wit, burglary. Defendants entered pleas of not guilty and defendant Young denied the prior conviction. Defendants and all counsel waived trial by jury.

Pursuant to stipulation the cause was submitted to the court on the evidence introduced and testimony contained in the transcript of the proceedings had at the preliminary hearing, all sides reserving the right to produce additional evidence if they so desired. Defendants were found guilty as charged. The court made no finding as to the prior convic

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tion. Motion for a new trial and probation were denied and defendant Young was sentenced to a term of 60 days in the county jail. Young alone appeals from the judgment of conviction.

Defendant makes no contention as to the sufficiency of the evidence. His sole contention on appeal is that the evidence obtained was inadmissible because the officers’ testimony was based upon illegally obtained evidence. The evidence pertinent to defendant’s position is as follows:

Officers Warren J. Franei and’ H. C. German of the Los Angeles Police Department vice detail' testified that - on April 7, 1962, they were concealed in a gardener’s tool shack which separated the men’s restroom from the women’s restroom. The shack is not open to the -public, but is kept locked when not being used by the gardener or the police department. There is located on the wall- separating the shack from the men’s room a galvanized metal vent parallel to and 4 to 5 feet above the ground ;• the vent protrudes 4 or 5 inches into the men’s room, forming a trap which is covered by a wire mesh and hardware cloth. Through the vent it is possible to look into the restroom. The- wire mesh forms part of the structure when the officers- use it to observe the restroom. It was the officers’ practice to stake out in the tool shack and, upon hearing someone enter the-restroom, to -go to the vantage point and observe what was happening. It Was possible by looking through the wire mesh to see not only the door to the restroom but also the three latrines. On April 7, 1962, they observed, while looking through the'vent, the conduct of both defendants as is denounced by'section 288a of the Penal Code. The commodes in the restroom had neither doors nor sides but were exposed to the -vision of any person entering the restroom.