People v. Loignon

HUPSTEDLER, J.

Defendant Loignon appeals “from the order denying motion for new trial and from the judgment. ’ ’ Loignon was charged with violating section 288a of the Penal Code, oral copulation with Terry, a 15-year-old boy.

Loignon pleaded not guilty, a jury trial was waived and the cause by stipulation was submitted to the court upon the testimony contained in the transcript of the preliminary hearing. On September 15, 1965, the court found Loignon guilty of violating section 272 of the Penal Code (contributing to the delinquency of a minor), a lesser offense included in the charge under section 288a of the Penal Code.

On the same date the trial court ordered a probation report and appointed Doctors McNiel and Abe to examine Loignon “under 5504 Welfare and Institutions Code re Mentally Disordered Sex Offender.” The court ordered “further proceedings re Mentally Disordered Sex Offender and Probation and Sentence continued to October 13, 1965.” On the continued date no evidence was offered or received. The court indicated that it had read the psychiatrists ’ reports and that Loignon would be certified to Department 95 for the purpose of determining whether or not Loignon was a mentally

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disordered sex offender. The following exchange then took place:

“Mb. - Stewabt : Would this be in preference to a commitment to Atascadero, your Honor

1

“The Court: I think we have to

go

there instead of directly.

“Mr. Stewart: No. We can go direct to Atascadero.

“Mr. Boags : Yes.

“The Court : I will refer him directly because I am satisfied that he is a mentally disordered sexual offender. He will be referred to Atascadero for ninety days. ’ ’

An order of commitment was made October 13 reciting that defendant was “found a mentally disordered sex offender under section 3255 Penal Code. Committed as indicated.” [Reference to Penal Code section 3255 was obviously in error since there is no section of the Penal Code so numbered.] The order directed Loignon to be confined to Atascadero State Hospital for a 90-day period for observation and diagnosis.