People v. Hensel

• Decision Date: 26 April 1965
• Docket Number: Cr. 9582
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerald Dale HENSEL, Defendant and Appellant.

Page 865

43 Cal.Rptr. 865

233 Cal.App.2d 834

The PEOPLE, Plaintiff and Respondent, v. Gerald Dale HENSEL, Defendant and Appellant.

Cr. 9582.

District Court of Appeal, Second District, Division 4, California.

April 26, 1965.

Hearing Denied June 23, 1965.

Herbert E. Selwya, Los Angeles, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and John F. McLaren, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was charged, by information with a violation of section 288a of the Penal Code (oral copulation). Jury was waived, and the matter was submitted on the transcript of the testimony taken at the preliminary examination, without additional testimony. Under circumstances hereinafter described, he was ultimately found guilty of a violation of subdivision (a) of section 647 of the Penal Code. ¹ He was sentenced to a term of sixty days in the county jail, sentence was suspended and he was put on probation for one year. He has appealed from the order granting probation (Pen.Code, § 1237).

On appeal, he contends: (1) that the evidence against him was illegally obtained and, thus, was inadmissible; (2) that the court erred in finding him guilty of a violation of section 647, since that is not a lesser and necessarily included offense within the offense (§ 288a) with which he was charged. We conclude that neither contention is valid.

I

The sole evidence against defendant was that of the arresting officer. The officer testified that he had stationed himself where he could look through a ventilation screen into the men's toilet of a public park. While so stationed, he observed defendant and his codefendant engage in an act of oral copulation. They were standing near a row of urinals. The rest room was approximately 20 by 15 feet, with five urinals without partitions or dividers and three toilets enclosed on three sides but without doors. The men were in plain view of anyone entering the rest room.

Defendant relies on Bielicki v. Superior Court (1962) 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, and on Britt v. Superior Court (1962) 58 Cal.2d 469, 24 Cal.Rptr 849, 374 P.2d 817, in both of which cases evidence obtained by clandestine observations of the occupants of a public rest room was held to have been obtained in violation of a right of privacy and, therefore, illegally obtained. Neither case is here in point. The controlling cases are People v. Norton (1962) 209 Cal.App.2d 173, 25 Cal.Rptr. 676, and People v. Young (1963) 214 Cal.App.2d 131, 29 Cal.Rptr. 492, in both of which petitions for hearing by the Supreme Court were denied. In Bielicki, and in Britt, the defendant's activities were carried on in a place not open to public view. Here, as in Norton, and in Young, although the officer was hidden, the defendant's conduct was in a place open to view by anyone entering the room. As we recently said in People v. Aguilar (1965) 232 Cal.App.2d ----, ----, ^* 42 Cal.Rptr. 666, 669: 'If a defendant conducts his activities under circumstances indicating an indifference to public observation, he cannot object if the observer is a policeman.'

II

The information charged a violation of section 288a, couched in the language of that section. After the court had announced its finding of guilty as charged, a motion for a new trial was made and denied. Defendant's counsel urged the court to reconsider and reduce the offense to that of a violation of section 650 1/2 (an offense not within the registration provisions of section 290 of the Penal Code). After discussion, the court made an order setting aside its order denying a new trial, entertained a renewed motion and, in ruling on this second motion, the court reduced the offense to a violation of subdivision (a) of section 647 and then denied the motion for a new trial for the offense as so modified.

Preliminarily, the Attorney General argues that the trial court, having once denied a motion for a new trial was, without jurisdiction to vacate that order and entertain a new motion. ² In support of this contention, he cites a footnote in In re Levi (1952) 39 Cal.2d 41, 45, 244 P.2d 403 and the case of People v. Paysen (1932) 123 Cal.App. 396, 11 P.2d 43s. Neither case is in point. In both, the new trial proceedings had been completed and a substantial period of time had elapsed before, at a different session of the court on a different day, there was any attempt to renew the motion. But here the order denying the new trial motion had not yet been entered in the minutes, nor had any subsequent proceeding in the case begun.

Where sentence has been pronounced, the trial court has authority to vacate it and to enter a different sentence at any time before the sentence is entered in the minutes or the execution of the sentence has begun. (People v. Thomas (1959) 52 Cal.2d 521, 342 P.2d 889.) We see no reason why an order denying a new trial should be any more sacrosanct. If the possibility of error, or of an unwise use of discretion, is suggested to the trial court, before its order has become fixed either by clerical entry or by subsequent official action based on the order, the trial court should, and we are convinced does, have the power to reexamine its ruling.

We agree with defendant that a violation of section 647, subdivision (a), is not a 'lesser and necessarily included' offense within section 288a. The basic test has been stated as follows:

'Where the offense charged cannot be accomplished without in the process committing the lesser offense, that lesser offense is a necessarily included offense. And, conversely, if the two offenses so differ in their elements that the offense charged can be committed independently of the lesser offense, a verdict of guilty of the lesser offense is unauthorized and void.' (Witkin, Cal. Criminal Procedure, § 542, p. 553.)

Since subdivision (a) of section 647 can be violated only by conduct in 'any public place or in any place open to the public or exposed to public view,' whereas the offense denounced by section 288a can be committed in any place, public or private, it necessarily follows that no 'necessarily included' offense was present. ³

However, the basic test as above stated is subject to certain exceptions:

(1) If the indictment or information, as drawn and on which a defendant was arraigned, contains allegations not necessary for a pleading of the major offense but which interject, as additional allegations, sufficient facts so that the elements of the 'lesser' offense are fully set out, then a verdict or finding of guilt of the 'lesser' offense is valid. (People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456.)

(2) Where there is but a single offense, but that offense carries different consequences depending on the manner of its commission, the formal pleading may be aided by the testimony produced at the preliminary examination--the testimony and the formal pleading, together, adequately advising the defendant of the case he will be expected to meet at the trial. (People v. Collins (1960) 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326.)

In People v. Leech (1965) 232 Cal.App.2d ---- ^** 42 Cal.Rptr. 745, a judgment of conviction, based on a jury verdict of guilty of a violation of section 417 of the Penal Code, was reversed because the information had charged a violation of section 245 and we concluded that the offense denounced by section 417 was not a necessarily included offense within that denounced by section 245. However, in Leech, the trial court had submitted the case to the jury under both section 245 and section 417. There is nothing in the record of that case to indicate that the defendant had requested, or had consented to, the submission of any offense other than the single offense (a violation of section 245) which was pleaded. By virtue of sections 1176 and 1259 of the Penal Code, this action of the trial court, not having been invited or acquiesced in by defendant, was before the appellate court for review. But in the case at bench, the case had been heard by the trial court without a jury; the interjection of section 647, subdivision (a) was part of a running discussion between court and counsel, designed to arrive at a just determination of a particular case on its own particular facts. Clearly, with the consent of defendant, the information could, at that juncture, have been amended to add, as an additional count, a charge of violating subdivision (a) of section 647. Defendant had, earlier, expressly asked the court to 'reduce' his offense to a violation of section 650 1/2, and thereby impliedly...