ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
CURTIS, District Judge.
Petitioner seeks habeas corpus relief from his 1965 state court conviction for violation of California Penal Code § 288a oral copulation. Upon appeal, the District Court of Appeal affirmed the conviction and a petition for rehearing was denied. Petitioner then petitioned the Supreme Court of the State of California for rehearing, which was denied. Subsequently, his appeal to the Supreme Court of the United States was dismissed and his petition for certiorari denied, 395 U.S. 211, 89 S.Ct. 1772, 23 L.Ed.2d 213.
Since the petition raises no question of fact but is based upon alleged errors occurring at the time of the trial, no evidentiary hearing is required and none has been sought.
The court has before it the entire record of the trial, including the reporter's transcript, which we have read in its entirety. We have also read the opinion of the District Court of Appeal, which we find states the facts accurately and completely.
Since all questions raised here have been considered and decided by the District Court of Appeal, and since we agree completely with that court's conclusions, we can do no better than to adopt, as our own, the District Court of Appeal's opinion in so far as it relates to the questions here raised.
That portion of the opinion thus adopted follows:
"This appeal followed a verdict finding the defendant guilty of violating section 288a of the Penal Code and imposition of sentence.1
"1. Defendant's motion for new trial was denied. Sentence of one year in the Los Angeles county jail was suspended, and probation granted on enumerated conditions for a period of two years.
"The facts are that one Huddleston, manager of Coffee Dan's restaurant in Santa Monica, contacted the police department of that city and complained about the use of the restaurant's restroom as a meeting place of homosexuals. At the suggestion of the police, Huddleston had the door of the men's restroom commode removed, thus leaving the stall enclosed on three sides only. A false ventilator aperture was placed in the wall of the room. This louvred opening permitted visibility into the restroom from a refrigeration room. The police were given access to this observation facility for the purpose of surveillance of persons frequenting the restroom.
"By placement of the peephole, the toilet could be viewed much as it could from other parts of the room. On March 19, 1965, in company with Officer Sullivan, Officer Sutter of the Santa Monica Police Department was on duty and present at the peephole, observing the activities within his view in the restroom. At about 11:55 p. m., Sutter saw the defendant enter the room and proceed as though to use one of the facilities. Some five minutes later, codefendant Peralta entered and addressed himself to the urinal. Peralta looked over his shoulder in the direction of defendant. Then Peralta turned to face the defendant and performed certain acts which the defendant mimicked while also making other gestures with his tongue. After an interruption and cessation of activity following entry of a third person to the room, a repeat performance occurred, culminating in Peralta's proceeding to the area of the defendant and consummating the criminal act in cooperation with the defendant. The prohibited junction between the two men was observed for some one or two seconds by Sutter before he and Sullivan left their point of vantage, proceeded to the restroom, entered, and arrested both participants.
A statement as to constitutional rights was duly given to defendant and codefendant, and each indicated an understanding thereof.2
"2. The trial of this case preceded Miranda v. Arizona (June 13, 1966) 384 U.S. 436 86 S.Ct. 1602, 16 L.Ed.2d 694 and the guaranties as recited by the officers complied with the requirements of People v. Dorado, 62 Cal.2d 338 42 Cal.Rptr. 169, 398 P.2d 361.
Some 15 minutes later, while at the booking area of the Santa Monica jail, defendant was asked if Peralta had solicited him in the men's room. Defendant said: `Well, yes. Any time you go in there somebody is always showing you something.' Peralta was separately asked if defendant had solicited him. Peralta said: `Well, yes. He was playing with hisself sic.' These statements were admitted at trial over objection of defense counsel.
"The contentions of defendant on appeal are several. Throughout the whole of the briefs is the theme of incredibility and insufficiency of the prosecution's evidence, but defendant specifically states that he makes no contention of error based upon insufficiency of the evidence. Though we, like the Attorney General, read the arguments as conflicting with defendant's specific denial, we accept his statement.
"One contention of defendant is that the prosecution of defendant violated his right to equal protection, in that `the law is enforced only against males engaging in oral copulation with each other.' The argument is unsupported by proof that the law is applied in a discriminatory manner. There is no evidence showing intentional or purposeful discrimination. (People v. Gray, 254 Cal.App.2d 256 63 Cal.Rptr. 211.)
"Though the defendant makes other contentions as to the unconstitutionality of section 288a of the Penal Code, they are without merit, and a review of cases cited is not warranted. (People v. Roberts, 256 Cal.App.2d 488 64 Cal. Rptr. 70.)
"It is contended that the hearsay statement of defendant Peralta was erroneously admitted. As we have recited, both the defendant and codefendant made extrajudicial statements which were admitted. At the time of admission of each statement, the trial judge instructed that the statement of each was admitted only as against the declarant. The codefendant's statement was properly objected to as one implicating the defendant. The statements of each party related to an accusation or solicitation by the other to commit the criminal act, and hence, not a true admission of the act itself. The extrajudicial statement by the codefendant, however, implicating the defendant in any way was in violation of the rule expressed in People v. Aranda, 63 Cal.2d 518, 530-531 47 Cal.Rptr. 353, 407 P.2d 265.3 This rule is made applicable to the instant case by People v. Charles, 66 Cal.2d 330, 335 57 Cal.Rptr. 745, 425 P.2d 545. In People v. Powell, 67 Cal.2d 32, 57 59 Cal.Rptr. 817, 429 P.2d 137, it is said: `The Aranda rule operates, of course, even when each statement is properly admissible against the declarant.'
"3. `When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. * * * (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible.'
"Since the opinion in Aranda, the United States Supreme Court considered the issue and declared the error to be one of constitutional dimension. Bruton v. U. S. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed 476 at 479 states that the admission of an extrajudicial statement by a codefendant which implicates another defendant is a denial of the right of cross-examination secured by the confrontation clause of the Sixth Amendment. Thus, since the trial of this case and since its briefing on appeal, both the Supreme Court of California and that of the United States have declared that what defendant here objects to is error. It being a `constitutional' error, the rule of Chapman v. California, 386 U.S. 18 87 S.Ct. 824, 17 L.Ed.2d 705 is applicable.4 In light of defendant's admissible statement, the erroneous admission of codefendant's statement added nothing of substance.
"4. `Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' (p. 24)
"As a separate contention of reversible error, and as affecting the magnitude of the Aranda error, defendant contends that an instruction on corpus delicti necessarily was required in this case.5
"5. CALJIC 29c Alternate:
`The guilt of a defendant may not be established alone by any confession or admission made by him outside of this trial. Before any person may be convicted of a criminal offense, there must be proof, independent of any such statement, that the crime in question was committed, but it is not necessary that such independent proof include proof as to identity of the person by whom such offense was committed.'
The record discloses that counsel for defendant stated he would submit to the court the typed instruction which he wished given. He did not do so. Unless the court was under a duty to so instruct sua sponte, there was no error. As the recitation of facts relates, Officer Sutter related having perceived the defendant and codefendant do every element of the crime charged. There was no defense evidence to controvert the facts to which Officer Sutter testified. The defendant's statement in its strongest inference was corroborative at most. The court, at defendant's request, gave the cautionary instruction: `Evidence of the oral admission of defendants ought to be viewed with caution.' (People v. Putnam, 20 Cal.2d 885, 891 129 P.2d 367.) Like...
