People v. Hector , 104 Cal. App. 2d 392 ( 1951 )

DRAPEAU, J.

The father, grandfather, and a friend, took a 10-year-old boy and an 8-year-old girl to the beach on a Sunday morning. The men saw the children safely seated on the beach, and drove away in their car, to purchase some candy bars for them. In a few minutes they came back with the candy bars. Then they left again on some business of their own. This time they were gone for a half hour or so.

Before they left, the men noticed defendant walking up and down the beach. Defendant was clad in blue overalls and a brown shirt, and had a bucket in his hand. The men thought he was a fisherman.

When they came back the second time, the men saw defendant kneeling on the sand in front of the little girl, with his hands on her legs. In the meantime defendant had discarded his pants and brown shirt, and was clad in T-shirt and shorts. The rest of his clothing and his bucket were in a little pile a short distance away on the beach.

The grandfather ran toward defendant’s clothing, thinking to intercept him there. When defendant saw the grandfather, he too ran for his clothing, and sure enough the two men met near the clothing and the bucket. The grandfather hit defendant with his fist, and called the police. Defendant said: “. . . all at once, like a bolt of lightning hit me, I was caught in the mouth and I was knocked back into the water.”

Defendant was arrested, charged with, and convicted by the court of violation of Penal Code, section 288. He admitted a prior conviction in Mississippi, and imprisonment in that state, for the same type of offense. On his trial, on cross-examination, he admitted another conviction and imprisonment, in Arizona, for the same type of crime.

On the trial, the boy and girl testified to criminal acts upon the girl by defendant. Their testimony, along with the testimony of the father and grandfather, amply supports the verdict of the trial court.

Defendant testified that what he did was done with no unlawful intent; and he denied that he had his pants and brown shirt off.

Defendant’s first contention on appeal, that the evidence does not support the verdict, is untenable. The substantial-evidence rule here applied needs no extended citation of authority. (People v. Jones, 36 Cal.2d 373 [224 P.2d 353].)

Defendant’s second contention is that the trial court was required to follow section 5500 et seq. of the Welfare and Institutions Code, relative to sexual psychopaths.

In 1950 the Legislature amended section 5501 to read, in part, as follows:

“(c) When a person is convicted of a sex offense involving a child under 14 years of age and it is a felony, the court shall adjourn the proceeding or suspend the sentence, as the case may be, and shall certify the person for hearing and examination by the superior court of the county to determine whether the person is a sexual psychopath within the meaning of this chapter.”

Instead of doing this, the trial court sentenced defendant to the state prison, and denied his request to file a petition in sexual psychopathy. It does not appear from the record that the amendment was brought to the court’s attention. However, the law is mandatory and must be followed. (People v. Barnett, 27 Cal.2d 649 [166 P.2d 4]; People v. Thompson, 102 Cal.App.2d 183 [227 P.2d 272].)

Apparently the social objective of the Legislature. is to keep men like defendant sequestered from further contact with society for so long a time as they remain a menace to children. Experience has shown that such men, with their unnatural mentality, are unable to refrain from molesting children, and sometimes kill them in fear of being found out and punished. Therefore, a state policy designed to make sure that sexual psychopaths are put away for good, if necessary, is to be commended. (See “Sane Laws for Sexual Psychopaths,” 1 Stan.L.Rev. 481.)

To confine such men in prisons of maximum security has long impressed penologists as not solving the problem. For some time past it has been urged before the Legislature that some method of sequestration in mental hospitals should be adopted which will afford not only confinement for the individual so affected and consequent protection of society, but possibility of proper treatment and rehabilitation.

In this case, defendant has been found guilty and adjudged to be imprisoned in one of the state institutions for men. The law requires that before such imprisonment is carried into effect, the court shall follow the provisions of the sexual psychopath law; find whether defendant is a sexual psychopath ; and, if it so finds, commit him to a state institution for the mentally ill.

Society is protected, because defendant will be where he can do no harm to children until the director of the mental institution and the court shall both conclude that he has ceased to be a menace to children, and the court shall grant him'probation; or until he has served his sentence.

If he comes back to court for further disposition of his ease, he may be committed to the state prison. (People v. Tipton, 90 Cal.App.2d 103 [202 P.2d 330].) If the director of the mental institution thinks he is cured and the trial court doesn’t, defendant may be sent to state prison for the term required by the judgment.

The statute with which we are here concerned was adopted by the Legislature, and until it is modified or repealed the courts are without power to do other than apply the plain terms thereof. The policy of the state in matters of this kind is committed by the people to the Legislature; and whether such policy is sound or not must be determined by the legislative, and not the judicial, branch of the government.

The judgment of conviction is reversed only insofar as it commits defendant directly to imprisonment in a state prison, and is otherwise affirmed. The cause is remanded to the trial court with directions 1 ‘to suspend sentence for the purpose of hearing and determining whether or not the defendant . . . is a sexual psychopath,” to grant defendant the requested hearing, and after such hearing to commit the defendant to the Department of' Institutions or to a state prison as may be determined according to law, and to make such other orders in the premises as may be meet. (People v. Barnett, supra.)

White, P. J., concurred.