People v. Holzhauer

FOURT, J. This is an appeal from an order denying a motion for a new trial. The respondent has made a motion to dismiss the appeal upon the ground that it presents no meritorious question.

In an information filed in Los Angeles County on July 12, 1962, defendant was charged with a violation of section 220, Penal Code (an assault upon a named female, under the age of 18 years, with the intent to have an act of sexual intercourse with said female by means of force or fear). It was further charged that the defendant previously had been convicted of a felony in California. Defendant pleaded not guilty and before the time of the trial admitted the charged prior conviction. The jury returned a verdict of guilty as charged in the information. A motion for a new trial was denied. Two psychiatrists were appointed by the court under the provisions of section 5504, Welfare and Institutions Code. The first of the doctors reported that “this prisoner belongs in the category of a sexual psychopath and is a menace to the health and safety of others.” The second of the doctors reported that “the examiner believes that the defendant’s actions, his degradation from a long constant drinking habit, have built up a pattern of psycho-sexual neurosis that makes him a menace to the health and safety of others and a sexual psychopath as defined in section 5500 of the Welfare and Institutions Code. ”

Defendant was declared to be a “probable sexual psychopath,” criminal proceedings were adjourned and he was committed for a period of not to exceed 90 days to the state hospital at Atascadero for observation and diagnosis.

A résumé of some of the facts is as follows: Shortly before midnight of June 17, 1962, the victim herein was standing on the sidewalk close by her home in Van Nuys waiting for her boy friend. The defendant who had lived in the immediate area for several years drove up in an automobile. The victim, mistakingly thinking for a moment that the defendant was her boy friend, walked up to the car and upon discovering her mistake turned back. The defendant got out of the automobile and started to talk with the victim. She indicated that she was going down the street to a telephone booth to make a telephone call to her boy friend and the defendant asked if he could walk with her. They walked some little distance without locating a telephone and they then returned to the street where defendant and the victim resided. She saw her boy friend in front of her house in an [356]automobile. She ran toward the car in which her boy friend was riding but he did not see her and drove away before she got to the ear. The victim and the defendant then walked to a telephone booth on Van Nuys Boulevard where she talked on the telephone to her boy friend and arranged to meet him in front of her house in three minutes.