People v. Young

• Decision Date: 15 March 1963
• Docket Number: Cr. 8661
• Citation: 214 Cal.App.2d 131,29 Cal.Rptr. 492
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Lee YOUNG, Defendant and Appellant.

Page 492

29 Cal.Rptr. 492

214 Cal.App.2d 131

The PEOPLE, Plaintiff and Respondent, v. Robert Lee YOUNG, Defendant and Appellant.

Cr. 8661.

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

March 15, 1963.

Hearing Denied May 8, 1963.

Alexander, Imman & Fine by Richard H. Levin, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence Tapper, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

In an information filed by the district attorney of Los Angeles County, defendant and codefendant (not appealing) were charged with the crime of sex perversion in violation of section 288a of the Penal Code. The information further alleged defendant Young had suffered a prior conviction of a felony, to wit, burglary. Defendants entered pleas of not guilty and defendant Young denied the prior conviction. Defendants and all counsel waived trial by jury.

Pursuant to stipulation the cause was submitted to the court on the evidence introduced and testimony contained in the transcript of the proceedings had at the preliminary hearing, all sides reserving the light to produce additional evidence if they so desired. Defendants were found guilty as charged. The court made no finding as to the prior conviction. Motion for a new trial and probation were denied and defendant Young was sentenced to a term of 60 days in the county jail. Young alone appeals from the judgment of conviction.

Defendant makes no contention as to the sufficiency of the evidence. His sole contention on appeal is that the evidence obtained was inadmissable because the officer's testimony was based upon illegally obtained evidence. The evidence pertinent to defendant's position is as follows:

Officer Warren J. Franci and H. C. German of the Los Angeles Police Department vice detail testified that on April 7, 1962, they were concealed in a gardener's tool shack which separated the men's restroom from the women's restroom. The shack is not open to the public, but is kept locked when not been used by the gardener or the police department. There is located on the wall separating the shack from the men's room a galvanized metal vent parallel to and four to five feet above the ground; the vent protrudes four or five inches into the men's room, forming a trap which is covered by a wire mesh and hardware cloth. Through the vent it is possible to look into the restroom. The wire mesh forms part of the structure when the officers use it to observe the restroom. It was the officers' practice to stake out in the tool shack and, upon hearing someone enter the restroom, to go to the vantage point and observe what was happening. It was possible by looking through the wire mesh to see not only the door to the restroom but also the three latrines. On April 7, 1962, they observed, while looking through the vent, the conduct of both defendants as is denounced by section 288a of the Penal Code. The commodes in the restroom had neither doors nor sides but were exposed to the vision of any person entering the restroom.

After the arrest, one of the officers had a conversation wiht defendant in which defendant freely admitted that while he was waiting to pick up his wife he thought he would go into the restroom for the purpose of getting some relief sexually. When asked if he had been there before, defendant replied he had been there several times in the past.

Defendant contends that the testimony of the officers was inadmissible, since their observation of his conduct constituted an illegal search. Defendant urges that the facts in this case are substantially the same as those in Bielicki v. Superior, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, and therefore the judgment of conviction should be reversed. With this we disagree. The factual situations between the two cases are clearly distinguishable. Unlike Bielicki, supra, and Britt v. Superior Court, 58 A.C. 480, 24 Cal.Rptr. 849, 374 P.2d 817, here the commodes of the men's room were exposed to any persons entering the restroom area--they had neither doors nor sides. From their vantage point in the tool shack adjoining the restroom the officers observed the unlawful activities of defendant and codefendant taking place in an area open to public view and to anyone entering the toilet area. The officers then left the tool shack and immediately entered the men's restroom where they saw defendant sitting on a commode with the codefendant standing approximately three feet in front of him.

In Bielicki, supra, the officers indicated they had 'observed activities *...