People v. Batres

FOURT, Acting P. J.

This is an appeal from a judgment of conviction of four counts of incest and one count of a violation of section 288 of the Penal Code.

In an information filed in Los Angeles on January 3, 1967, defendant was charged in count 1 with having an act of sexual intercourse with his daughter Maria on June 1, 1966; in count 2 with having an act of sexual intercourse with his daughter Andrea on December 10, 1966; in count 3 with having an act of sexual intercourse with his daughter Maria on December 10, 1966; in count 4 with having an act of sexual intercourse with his daughter Teresa on December 1, 1966, and in count 5 with having committed a lewd and lascivious act upon the body of his daughter Teresa, a child under the age of 14 years, on December 1, 1966. Defendant pleaded not guilty, a jury was properly waived and a closed trial was ordered. Defendant was found guilty as charged on all counts. A probation report was ordered. Two psychiatrists were appointed pursuant to the provisions of section 5504 of the Welfare and Institutions Code for the purpose of ascertaining whether defendant was a mentally disordered sex offender. At a hearing it was stipulated that the matter be submitted upon the reports of the doctors on file, defendant was found to be a

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mentally disordered sex offender and he was committed to Atascadero State Hospital for observation, diagnosis and recommendations. Following such hospitalization a supplemented probation officer’s report was ordered, there was a full hearing and it was determined that defendant was a mentally disordered sex offender. Probation was denied, defendant was sentenced to the state prison, the terms on each count to run concurrently. A timely notice of appeal was filed from the “verdict, judgment and sentence.”

A résumé of some of the facts is as follows: (Count 1) At the time of trial Maria, defendant’s natural daughter, was 17 years of age. On June 1, 1966, defendant sent his wife (the mother of the children) to a store and while the mother was absent he compelled Maria to engage in an act of sexual intercourse with him. Maria did not tell anyone until later of what had occurred at that time, because defendant had threatened to kill her if she told.

(Counts 2 and 3) On December 9, 1966, defendant was drinking and watching a television program. Defendant contacted Andrea and directed her to get him a beer from the kitchen. Andrea, defendant’s daughter, slept with her father that night at his request and at about 5 a.m. of December 10, 1966, defendant directed his wife to get some food. While defendant and Andrea were alone defendant pulled off her clothes and compelled her to have an act of sexual intercourse with him. At that time Andrea was 16 years of age. On the morning of December 10, 1966, defendant’s wife discovered him in bed with Andrea and became very angry and left the house. Later on the same morning defendant had an act of sexual intercourse with his daughter Maria Elena. Maria Elena was 14 years of age at the time and occasion.