People v. Eubank

Opinion

ASHBY, J. In 2 consolidated informations appellant was charged in 25 counts; 24 of the counts involved sexual crimes and attempts against children, under Penal Code sections 288, subdivisions (a) and (b), 647a, and 664. One count involved attempted escape from the county jail. (Pen Code, § 4532, subd. (b).) Appellant pleaded nolo contendere to 10 of the charges: 2 counts of lewd acts on children under 14 by use of force, violence, duress, menace or threat of great bodily harm (Pen. Code, § 288, subd. (b)); 1 count of lewd acts on a child [341]under 14 (Pen. Code, § 288, subd. (a)); 4 counts of attempted violation of Penal Code section 288, subdivision (a); 2 counts of annoying or molesting a child under 18 (Pen. Code, § 647a); and 1 count of attempted escape from the county jail (Pen. Code, § 4532, subd. (b)). All the sexual offenses involved different children and occurred between March and May of 1981.

After instituting mentally disordered sex offender (MDSO) proceedings, and receiving doctors’ reports, the court found that appellant was an MDSO who could benefit by treatment in a state hospital, but the court exercised its discretion under former1 Welfare and Institutions Code section 6316 to return appellant to criminal court for further disposition. The court thereafter sentenced appellant to a term of 21⅔ years in the state prison.

Appellant’s sole contention is that the court based its discretion in returning appellant to criminal court rather than committing him to treatment in a state hospital. We find no abuse of discretion.

Appellant was 33 years old. He was convicted in Texas in May 1971 of indecent exposure to a child, given a suspended state prison sentence and placed on probation. In June 1972 he was arrested in Colorado for kidnaping and assault on a child, but failed to appear in court. He fled to Florida where he was arrested in September 1972 for child molesting and extradited to Colorado. He was committed to the Colorado state hospital from January 1973 to August 1974. In 1975 in Texas he was convicted of indecent exposure with child fondling and sentenced to six years in prison, concurrent with the term of his 1971 Texas offense, probation having been revoked. Discharged from Texas prison in November 1978, he was arrested in Colorado in February 1979. Charged with 14 counts of sexual assault on numerous children, he was declared insane and committed to the Colorado state hospital in May 1979. He escaped from the Colorado state hospital in December 1980, and came to California, where he committed the instant crimes between March and May 1981.