People v. Lindsey

• Decision Date: 28 February 1967
• Docket Number: Cr. 12031
• Citation: 249 Cal.App.2d 6,57 Cal.Rptr. 190
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Dolphin LINDSEY, Defendant and Appellant.

Page 190

57 Cal.Rptr. 190

249 Cal.App.2d 6

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Dolphin LINDSEY, Defendant and Appellant.

Cr. 12031.

Court of Appeal, Second District, Division 1, California.

Feb. 28, 1967.

Charles M. Berg, Beverly Hills, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David Gould, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from 'the judgment and sentence' following a conviction of certain sex offenses.

In an information filed on March 11, 1965, defendant was charged in count I with committing a lewd and lascivious act upon the body of Robbin DeDeaux on October 20, 1964, in count III he was charged with the same violation upon the same person on October 21, 1964, and in count V with the same violation upon the same person on October 22, 1964. In count II defendant was charged with violating the provisions of section 288a, Penal Code, in that he participated in the act of copulating the sexual organ of Robbin DeDeaux with defendant's mouth on October 20, 1964; in count IV defendant was charged with the same offense on the same person on October 21, 1964; and in count VI defendant was charged with the same offense on the same person on October 22, 1964. It was alleged that the acts mentioned in counts I through VI were committed against Robbin DeDeaux as above indicated and in counts II, IV and VI that Robbin was at the times of the offenses under the age of 14 years, namely, of the age of 7 years, and defendant was more than 10 years older than Robbin. In count VII defendant was charged with a violation of section 647a, subdivision 1, Penal Code (annoying and molesting a child) in that he did on October 19, 1964, molest Ray DeDeaux, a child of the age of 10 years, and, further, that defendant previously, in Kern County, on or about December 20, 1963, had been convicted of the crime of violation of section 647a, subdivision 1, Penal Code, with a prior conviction of violation of section 647a, subdivision 1, Penal Code, a felony. In count VIII defendant was charged with a violation of section 647a, subdivision 1, Penal Code, on October 19, 1964, in that he molested Elmer DeDeaux, a child of the age of 12 years, and the prior conviction as stated in count VII was also alleged. It further was charged that defendant, on December 20, 1963, was convicted of a felony in the County of Kern. Defendant pleaded not guilty and denied the prior conviction. Trial by jury was waived and it was stipulated that certain testimony could be read into the record with reference to the prior conviction. Defendant was found guilty as charged, as to counts II, IV and VI, the victim was found to be less than 14 years old and defendant was found to be more than 10 years older than the victim. A motion for a new trial was denied. Doctors were appointed pursuant to section 5504, Welfare and Institutions Code, and defendant was found to be a probable mentally disordered sex offender. Criminal proceedings were suspended and defendant was committed to Atascadero State Hospital for a period of not to exceed 90 days. Pursuant to a report of the superintendent of the hospital that defendant was a mentally disturbed sex offender who would not benefit by care and treatment in a state hospital, the cause was restored to the calendar. A motion for a new trial was again denied and defendant was sentenced to the state prison for the terms prescribed by law as to the offense stated in each of the counts; further, it was ordered that the sentence under count II was to run concurrently with the sentence under count I, that the sentence under count III was to run consecutively with the sentence under count I, and the sentences under counts IV, V, VI, VII and VIII were to run concurrently with the sentence under count III. ¹ Defendant filed a timely notice of appeal.

Appellant makes no contention or assertion that the evidence is not sufficient to support the judgment and as a consequence it will not be necessary to set forth the sordid details with reference to the events established. Suffice it to say, the evidence does support the conviction in each and every count as charged. It may also be asserted that the events and acts established with reference to counts II, IV and VI were not separate and distinct events and acts from those established with reference to counts I, III and V, respectively. In other words, the act committed on October 20, 1964, involving Robbin DeDeaux involved one act, and the same for the act committed on October 21, 1964, and the same for the act committed on October 22, 1964.

Appellant now contends that to punish him for violations of sections 288, 288a and 647a, subdivision 1, of the Penal Code is a violation of the Eighth Amendment of the United States Constitution, that punishing him for violation of sections 288 and 288a, Penal Code, constitutes double punishment as proscribed by section 654, Penal Code, and that such judgment is void, and, further, that when he 'pleaded guilty to his alleged prior he did not receive effective representation' and, therefore, the prior cannot be found to be true.

The punishment imposed upon appellant for annoying and molesting the DeDeaux boys is not cruel nor is it unusual. Appellant relies heavily upon Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, arguing, in effect, that he is being punished for being a mentally disordered sex offender and Robinson bars any such a judgment. Here appellant is being punished for the despicable and perverted acts he committed--not for any illness or disorder. Robinson is not in point.

With reference to appellant's contention that it was error to find a prior conviction of a violation of section 647a, subdivision 1, Penal Code, true, it is necessary to set the record straight. The chronology of events with reference to the charge in question is as follows: In February, 1962, in Kern County, appellant pleaded guilty to a violation of a charge of violating the provisions of section 647a, subdivision 1, Penal Code, a misdemeanor. Apparently he was not represented by counsel at the time of his plea. He was sentenced to 90 days in jail for the offense. In August of 1962 appellant again was arrested in Kern County on a charge of violating the provisions of section 647a, subdivision 1, Penal Code. The information there filed also charged the prior conviction of February 1962, thereby making the matter a felony. Apparently appellant, at that time, also was charged with a violation of section 288, Penal Code. In the August, 1962, case appellant was represented by an attorney.

Appellant, in the August, 1962, Kern County case, pleaded guilty to the section 647a, subdivision 1 charge and admitted the alleged prior conviction (the conviction of February, 1962). He was directed to Atascadero State Hospital as a mentally disordered sex offender and was under treatment at that establishment for about 14 months. Apparently he was also convicted of a violation of section 288, Penal Code. In any event he was returned to court in Kern County where he was represented by the attorney who represented him in the first instance, and appellant was placed on probation for three years. It is apparent that there is no merit to appellant's present contention in the case at hand for at the least appellant pleaded guilty to a violation of the provisions of section 647a, subdivision 1, and even if the prior conviction should not have been considered at that time (and we make no such holding) appellant is guilty as charged. ²

Coming to the last contention, it would appear from the Supreme Court's interpretation of section 654, Penal Code, that appellant has been sentenced to multiple punishment for multiple acts during a single course of conduct on the respective dates heretofore mentioned.

The attorney general suggests that the sentences be vacated on counts I, III and V, that is, the sentences for violating section 288, Penal Code, on the three separate days. It is stated in People v. Hicks, 63 Cal.2d 764, 765--766, 48 Cal.Rptr. 139, 140, 408 P.2d 747, 748: 'Section 654 of the Penal Code prohibits double...