People v. De La Roi

FORD, J.

The appellant was charged with the violation of section 288 of the Penal Code.

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He waived his right to trial by jury- He was found guilty. Proceedings were thereafter had in accordance with the provisions of the law relating to sexual psychopaths. (Welf. & Inst. Code, § 5500 et seq.)

After a period of observation in the state hospital, the appellant was found to be a sexual psychopath. He was thereafter confined in the Atascadero State Hospital. (Welf. & Inst. Code, § 5512.) Ultimately, the superintendent of that hospital filed a report in which he stated his opinion that the appellant would not benefit by further care and treatment in the hospital and was not a menace to the health and safety of others. (Welf. & Inst. Code, § 5517.) He was then returned to the court, his motion for a new trial was denied, his application for probation was denied, and he was sentenced to imprisonment in the state prison for the term prescribed by law. The present appeal is from the judgment.

[471]

The first contention of the appellant is that the evidence was insufficient to support the conviction. The child involved was 8 years old at the time of the alleged offense and at the time of her testimony. No objection to her competency as a witness was made upon completion of the voir dire examination or at any other time. She testified that the appellant was a neighbor and the incident occurred in his house when no one was present other than the witness and the appellant. He mentioned a doll. He touched her private parts with his hand for about 10 seconds, placing his hand inside of her shorts and panties. She then said, “Can I have the doll!” Her mother called her and she left. She told her mother about the incident.

The appellant testified on his own behalf. At the time of his testimony, he was 47 years old. On the day upon which the child said that the incident occurred, she came to his house, a boarding house where he had lived for about a month. She asked him if she might have a doll that was in the house. He told her that she could look at the doll but could not take it. The child pulled her dress out and suggested that he touch her. He said, “No.” He did not touch her at any time. Her mother called her and she left. On cross-examination, he testified that he had been convicted of a felony on three occasions, two of the convictions being for burglary and one for grand theft.