People v. Thompson

• Citation: 167 Cal.App.2d 727,335 P.2d 249
• Decision Date: 09 February 1959
• Docket Number: 6218,Cr. 6219
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Repondent, v. Edward M. THOMPSON, Defendant and Appellant.

Page 249

335 P.2d 249

167 Cal.App.2d 727

PEOPLE of the State of California, Plaintiff and Repondent, v. Edward M. THOMPSON, Defendant and Appellant.

Cr. 6219, 6218.

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

Feb. 9, 1959.

Robert P. Dockeray, Los Angeles, for appellant.

Edward G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

FOURT, Justice.

Two appeals are consolidated in this cause. The first, hereinafter referred to as cause one, involved the defendant in two charges of violating the provisions of section 288, Penal Code, in that he did, on June 26, 1949, commit a lewd and lascivious act upon the bodies of two sisters (twins) aged seven years. He was, in that case, charged with three prior convictions, as follows: (1) that in the state of Maine he was convicted of the crime of indecent liberties, and on September 10, 1936, was sentenced to serve a term of imprisonment in the state prison therefor; (2) that in the state of Montana he was convicted of the crime of lewd and lascivious acts upon a child, and was, on April 3, 1940, sentenced to a term in the state prison; (3) that in the State of Washington he was convicted of the crime of indecent liberties with a female child, and on June 1, 1942, was sentenced to a term in the state prison. The defendant pleaded guilty to count I of the charges in that information, and admitted all three prior convictions. Count II was subsequently ordered off calendar.

The court, after a hearing, found the defendant to be a sexual psychopath and ordered him committed as such to a state hospital. In the latter part of the same year the judge who committed the defendant received a letter from the superintendent of the state hospital where the defendant was confined. The essence of that communication was that the defendant was on parole from the Washington state prison and the Washington state authorities would take the defendant back if he could be released, and further that the defendant would not benefit by further care at the Patton hospital. The defendant was returned to court and the proceedings which followed (sentencing the defendant to the California state prison at San Quentin) were not (according to this court) in conformity with the law and the judgment was reversed and further proceedings were ordered. People v. Thompson, 1951, 102 Cal.App.2d 183, 227 P.2d 272. The reversal had nothing to do with the matter of his guilty plea and the admission of the priors.

The defendant was thereafter ordered recommitted to Patton state hospital, where he apparently was confined as a sexual psychopath. The minutes of the court of September 20, 1954, recite that on that day in open court, the judge found the defendant to be no longer a sexual psychopath, all of the prior convictions were stricken in the interest of justice, and the criminal proceedings were reinstated. The defendant was then sentenced to the state prison on count I, and the execution of the sentence was suspended and probation was granted. Count II was then dismissed. The defendant was thereupon released into society.

The judgment in the record before us does not conform to the minutes above mentioned, but sets forth that the defendant pleaded guilty to the charge as set forth in count I, that he admitted the prior convictions and served terms therefor in the state prison mentioned in each instance. Nothing is set forth in regard to the striking of any prior convictions.

If the defendant was cured of his sex psychopathy, as the judge apparently believed he was, it was not for long, because on November 13, 1954, the defendant committed the offense which will hereafter be referred to as cause II.

In cause II, the defendant was charged in an information with a violation of section 647a, subdivision 1, Penal Code, in that he did annoy and molest a female child of the age of five years, and that before the commission of such offense he had been convicted of the crime of violating section 288, Penal Code, and judgment was pronounced thereon on about August 27, 1949, and further, he was charged with the other prior convictions heretofore mentioned. The defendant entered his plea of not guilty and denied the prior convictions. By stipulation, the prosecution's case was submitted on the transcript of the testimony taken at the preliminary hearing. Complete and proper certified copies of the former prison records, together with pictures and the fingerprints of the defendant, were submitted. The defendant was found guilty as charged, and each prior conviction was found to be true. Sexual psychopathy proceedings were then instituted and the defendant was found to be a probable sex psychopath. Criminal proceedings were adjourned and the defendant was sent to Atascadero state hospital for a period of ninety days' observation and diagnosis. Within the ninety-day period the cour received reports from the superintendent of the Atascadero state hospital to the effect that the defendant was 'a sexual psychopath who could benefit from treatment.' The defendant was then found to be a sexual psychopath and was committed to such facility for an indeterminate period.

In December, 1957, a printed form report of the Superintendent and Medical Director of Atascadero state hospital was filed in court wherein it was set forth that the defendant would not benefit by further care and treatment in the hospital, and that he was not a menace to the health and safety of others. Attached to the report and made a part of it is the statement that, out of the last thirty-seven years the defendant had spent about twenty years in prisons and hospitals, and that the diagnosis was, among other things, 'sociopathic personality disturbance.'

On January 16, 1958, the defendant's application for probation was denied, the prior convictions were stricken 'in the interests of justice' and he was sentenced to the state prison.

At the same time, in cause one, the judge ordered the probation theretofore granted revoked, and sentenced the defendant to the state prison, striking the prior convictions 'in the interests of justice.' The two terms were to run concurrently.

These appeals followed. The defendant concedes that if the appeal from cause two fails, there is no ground for reversal of the judgment in cause one.

A resume of the facts in cause two follows: On November 13, 1954, Mrs. Mary L. Silva and her five-year-old daughter, Nancy, went to a motion picture theatre located on Hill Street in Los Angeles. The mother was seated next to the aisle and her daughter was seated next to her to her left. The theatre was nearly empty. About one-half hour after the mother and daughter were seated, the defendant sat down in the seat next to the child. The child was sitting with her hands placed on the seat next to her body. The defendant was sitting with his right arm on the arm rest that was between his chair and the child's chair, and he was raising and lowering his arm from the elbow while it was on the arm rest. While so moving his arm the defendant looked at the child's face. Also, while moving his arm, he more than once touched the child's hand though her hand was resting as heretofore stated. Mrs. Silva, the mother, then observed the defendant lift up the child's dress and expose a part of the child's leg, and the mother struck the defendant's arm and said, 'You stop that right now.' The defendant replied, 'Give me a break, lady,' and some other woman in the theatre said, 'Call the cops.' The defendant then ran out and was caught by two sailors. Later at the police station, the defendant, in the presence of two officers, freely and voluntarily stated that he went into the theatre and that 'he knew when he saw her he was going to sit down next to her.' He also said, 'there was some inner impulse that made him do it.' Also that, 'he put his hand just below her knee,' that he 'held her hand for a few minutes and that he put his hand above her knee.' He then told the officers of some of his previous troubles. The defendant wrote out, in his own handwriting, a statement wherein he stated, in effect, that he had 'molested' the child in the theatre, that he had 'fondled' her 'hand and her leg.'

The defendant did not introduce any evidence by way of defense or otherwise.

The then attorney for the defendant announced at the conclusion of the prosecution's case, 'Your Honor, there is no defense to this * * *.' The court found the defendant guilty as charged and found all three prior convictions to be true.

The defendant was permitted to make an application for probation. The court appointed two psychiatrists to examine the defendant. The court also ordered that the violation of probation in cause one would be heard at the time of hearing the application for probation in cause two. At the time of the sentencing of the defendant, his counsel argued to the court that because of his (counsel's) faith in psychiatrists and his faith in Thompson, probation should be granted; that if the defendant went to the penitentiary 'the Board's (Adult Authority) hands are completely tied for years because of the prior felony convictions.' The judge then expressed the view, which was correct, that the defendant was ineligible for probation because of the prior convictions. The court also pointed out that the defendant had served three terms in three separate prisons for sex offenses, and that he had a number of other sex charges against him going back almost thirty years. The court then, at the request of counsel for the defendant, struck the...