People v. Jermane

SHINN, P. J.

In an information filed by the district attorney defendant was charged in three counts with violation of section 288 of the Penal Code. In count III the victim was a boy, 8 years of age.

Defendant was arraigned and pleaded not guilty and not guilty by reason of insanity. The court appointed three doctors to examine defendant’s sanity under section 1027 of the Penal Code, and trial was set for May 2, 1960. On that date defendant withdrew his plea of not guilty by reason of insanity and pleaded guilty to count III. Counts I and II were dismissed.

The court appointed Doctors Bielinski, Abe and Polos under section 5504, Welfare and Institutions Code, and asked for their conclusions as to whether the defendant was a sexual psychopath.

[756]

Following receipt of the reports, the court found defendant to be a probable sexual psychopath and committed him to Atascadero State Hospital for observation and diagnosis for a period not exceeding 90 days. Atascadero concluded that defendant was a sexual psychopath, that he could be benefited by hospital treatment, and reported these conclusions to the court. On August 5, 1960, the court found defendant to be a sexual psychopath within the meaning of the Welfare and Institutions Code and ordered that he be recommitted to the Department of Mental Hygiene and confined to the Atascadero State Hospital for an indeterminate period. Defendant’s motion for appointment of further psychiatrists was denied along with his motion for an order to provide him with a copy of the “Findings” from Atascadero.

Defendant demanded a hearing and a jury trial as to the question of his sexual psychopathy. (Welf. & Inst. Code, § 5512.) The court again appointed Doctors Bielinski, Abe and Polos pursuant to section 5504 of the Code. On October 10, 1960, it was stipulated that a jury trial be waived. It was further stipulated that defendant was not a sexual psychopath. A supplemental probation officer’s report was ordered. The court denied probation and sentenced defendant on count III to imprisonment in the state prison. Defendant appeals from the judgment and from orders denying probation and denying reconsideration thereof.

Defendant alleges that the trial judge’s determination that “There is no question in my mind but what this defendant, if he is not a sexual psychopath, is a man who, in either event, must be confined. He will not be released. This community is entitled to some protection,” flowed solely from the trial judge’s prejudice against sex offenders and that such an attitude amounts to an abuse of discretion.