People v. Russell

KINGSLEY, J.

— On May 27, 1964, the District Attorney of Los Angeles County filed an information accusing defendant with having violated section 288a of the California Penal Code. Jury was waived and, after a trial to the court, he was found guilty. A motion for new trial was made and denied. Thereafter, proceedings were commenced under the Mentally Disordered Sex Offender Act (Welf. & Inst. Code, §§ 5500 et seq.), resulting in an order suspending the criminal proceedings and committing defendant to Atascadero State Hospital for observation and report. Defendant filed a notice of appeal, which we treat as the statutorily permissible appeal in such cases from the order denying a new trial. (Pen. Code, § 1237, subd. 2.)

The testimony against defendant consisted of the testimony of his 16-year old brother-in-law (Larry Slager) that defendant had engaged in acts of oral copulation with the witness on a number of occasions, the testimony of the boy’s mother that defendant had said to her, after his arrest, that the boy had “stripped him of his manhood,” and certain testimony of a police officer, hereinafter discussed, as to conversations with defendant.

The contention on appeal is (a) that the boy was an accomplice ; (b) that the testimony of the police officer violated the rules laid down in

People

v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361] ; and (e) that, stripped of the officer’s testimony, there was insufficient corroborative evidence.

We need not determine the validity of the first contention. Assuming, without deciding, that the boy was an

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accomplice,

1

we hold that the officer’s testimony was properly admitted and that this testimony, added to that of the mother, was sufficient to meet any requirement of corroboration.

I

Prior to the preliminary hearing, defendant, while in custody, was engaged by one Officer Greenlee in a person-to-person conversation in which defendant stated, according to the testimony of Officer Greenlee, that “My attorney has told me not to make any statement.” The officer replied, “Fine. If you are hiring an attorney and paying him, you should follow his advice.” The officer added, “However, I want to discuss the case and unless you refuse, I intend to discuss it. You don’t have to answer any questions or you can answer any questions you choose, make any statement you want.” The officer then started to give the substance of his “discussion” with defendant. Objection was interposed and, after argument thereon, it was sustained and all testimony as to the contents of the discussion were stricken. Obviously, no prejudice to defendant occurred.