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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Herman SYLVIA, Defendant and Appellant.*

Cr. 1514.

Decided: September 11, 1959

Herman Sylvia in pro. per. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert M. Sweet, Deputy Atty. Gen., for respondent.

Appellant was charged in count one of an information with a violation of Penal Code, section 228a, in that on or about October 2, 1954, he unlawfully participated in the act prohibited and punishable under said section with Barbara Hulsey, she being then of the age of 12 years. In count two appellant was charged with the commission of lewd and lascivious acts upon the body of the same Barbara Hulsey on or about March 27, 1955, in violation of section 288 of the Penal Code. Count three also charged a violation of section 288 of the Penal Code in that on or about December 18, 1954, appellant committed certain lewd and lascivious acts upon the body of Patty Wolf, a child of 10 years. In the fourth and final count of the information it was alleged that appellant violated section 261, subd. 1 of the Penal Code in that on or about January 29, 1955, he did wilfully, unlawfully and feloniously commit an act of sexual intercourse with Sandra Jean Zahm, a female person under the age of 18 years, and being not then and there the wife of said defendant.

Appellant waived trial by jury and the court found him guilty of the offenses charged in counts one and three of the information and not guilty of the offense charged in count two. Count four was dismissed on motion of the district attorney. The court then suspended the criminal proceedings and two psychiatrists were appointed to examine appellant and determine whether or not he was a sexual psychopath. Appellant's motion for a new trial was denied and, on the basis of the report of the psychiatrists appointed to examine him, the court found appellant to be a sexual psychopath and ordered that he be committed to the Atascadero State Hospital for a period not to exceed 90 days for observation and diagnosis. The superintendent of said state hospital submitted to the court his opinion and recommendation that appellant is a sexual psychopath and that he could benefit from care and treatment in a state hospital and, on March 22, 1956, the court ordered that appellant be committed to the hospital for an indeterminate period.

On April 20 appellant withdrew his previous request for a trial by jury as to his commitment to the said hospital and he was ordered to surrender himself to the director of the state hospital at Atascadero on or before April 26, 1956. On April 26 of the following year appellant was returned from the hospital as no longer a sexual psychopath and the criminal proceedings were reinstated. Probation was denied and he was sentenced to imprisonment in the state prison.

There is substantial evidence in the record as to the following facts, which support the conviction on the charges in counts one and three of the information.

On October 2, 1954, appellant took Barbara Ann Hulsey, then under the age of 14 years, to the Los Angeles county fair at Pomona. Appellant picked her up at about noon at her home in Rialto, where she lived with her mother, father and sister. Appellant had been acquainted with Barbara's family for approximately two years and when he stated to Barbara's mother that he wanted to take Barbara and another girl, named Sandra, to the fair, she gave her permission if Sandra went along with them. Barbara and appellant drove to the fair in appellant's car but did not take Sandra with them. At the fair they ‘walked around and looked at things' and Barbara ‘went on one or two rides'. They left the fair at about 8:00 o'clock that night and started back to Rialto. Somewhere between Ontario and Colton, appellant stopped his car on the dirt shoulder of the freeway and then asked Barbara to participate in the act of perversion described in section 288a of the Penal Code. replied, ‘No. Let's go on’, and appellant said, ‘Just for a little while.’ Barbara then said, ‘Okay, then.’ The said act then took place and during its commission appellant remained behind the wheel of his car and did not remove any of his clothing. Appellant then drove back to Barbara's home, arriving at about 10:00 o'clock. He accompanied Barbara into the house and apologized to her mother for bringing the girl home late.

Count three. During the latter part of December, 1954, appellant took Patty Wolf, a 9 year old girl, to a movie at the Tri-City Drive-in Theatre on Highway 99 near the city of Colton. Appellant lived next door to Patty and her family and had known them for about a year. He had taken Patty to the show on previous occasions. On this occasion he arrived at Patty's home about 7:00 o'clock in the evening. After obtaining permission from Patty's mother, appellant took Patty to the show in his car. Some time after the show started, appellant asked Patty to pull down her pants. She ‘didn't say anything at first’ and then said, ‘Yes.’ After she pulled her pants down around her ankles, appellant leaned across the front seat and put his tongue in her private parts. He ‘quit’ after about five minutes. Patty pulled her pants back up and they then watched the show until the intermission, when they started back to Patty's home. Appellant accompanied Patty into the house and talked to her parents a few minutes before going home. Karen Wolf, Patty's 15 year old cousin, testified that during the first part of June, 1955, appellant told her that ‘Patty had let him play with her.’

On July 8, 1955, appellant was arrested on a warrant on a misdemeanor charge in connection with some pornographic pictres. The officers took appellant to his place of residence in Colton, where they were allowed entrance by a Mrs. Zahm. Appellant then showed the officers to his room, where they found numerous nudist magazines, a Polaroid Land camera, a box containing a package of playing cards depicting acts of sexual intercourse, a photograph of the private parts of a 16 year old girl, named Sandra Zahm, and photographs showing Sandra and another girl ‘in the nude’. Appellant was then taken to the county jail, booked on the warrant previously issued, and was released on bail.

On July 12, 1955, appellant was again taken into custody and when questioned at the police station, admitted to one of the detectives that he (appellant) had taken Patty Wolf to the drive-in picture show; that he had placed her on his lap and had asked her to play with his penis. Appellant also admitted having engaged in lewd and lascivious acts with Barbara Ann Hulsey ‘once or twice’. On July 13, 1955, appellant was again taken into custody on a warrant on a charge of lewd and lascivious conduct with Barbara Hulsey and at that time stated he was expecting the arrest; that he was ashamed for what he had done and would not do it again. He then admitted certain sexually deviant conduct with Barbara Hulsey during a return trip from the Pomona fair and at another time.

Appellant in his ‘statement of facts' attacks the sufficiency of the evidence to justify his conviction and contends that the record fails to reveal or disclose corroboration of the testimony of the prosecutrix. The testimony of Barbara Hulsey is amply sufficient to sustain a conviction as to the offense charged in count one of the information and it was not necessary that her testimony be corroborated. People v. Westek, 31 Cal.2d 469, 473, 190 P.2d 9. The testimony of Patty Wolf was also amply sufficient to sustain the conviction of the appellant as to the charges contained in count three of the information, and even assuming that she might be considered an accomplice, her testimony is amply corroborated by that of detective Alter concerning the extrajudicial statements and admissions made by appellant. People v. Mastrantuono, 88 Cal.App.2d 178, 181, 198 P.2d 574. The testimony of detective Alter as to admissions and statements of appellant also furnished corroboration of the testimony of Barbara Hulsey.

Appellant claims that his admissions and statements were secured by force and violence but the record shows that this claim was refuted by the testimony of the arresting officers.

Appellant contends that he was not taken before a magistrate at any time after his arrest within the time required by law and that he was not brought to trial within sixty days. These arguments are without merit. The record shows that appellant was first arrested on a misdemeanor warrant and was released on bail. There is no evidence in the record substantiating appellant's contention as to the claimed delay in taking him before a magistrate. As to the claimed denial of a speedy trial, the record shows that the information was filed on September 2, 1955, and appellant was arraigned on the same date. September 16 was set for entry of plea and continued to September 30. On that day appellant moved the court for separate trials and to dismiss the information. These motions were taken under advisement and a hearing thereon continued to October 14. On that date the motions were denied and appellant withdrew his motion to dismiss and entered a plea of not guilty. The matter was then set for trial on November 17, 1955, and a jury was ordered. The motion for severance was continued to October 28 and then continued to November 4, 1955, at appellant's request. On that date appellant withdrew his motion for severance and waived trial by jury. On November 17, 1955, the date originally set for trial, the matter was referred to another department of the court for resetting and on November 18 the trial was reset for December 20, 1955. Trial was commenced on that date. The record shows that continuances were had for the purpose of hearing motions made by appellant and on at least one occasion a continuance was had at appellant's request. It is apparent from the record that appellant made no objection to these continuances and no protest was made as to the time of trial. Under the circumstances appellant may not now raise this issue on appeal. People v. Akers, 143 Cal.App.2d 224, 229, 299 P.2d 398.

Appellant argues that certain photographs and cards introduced in evidence were secured as a result of unreasonable search and seizure. These photographs and cards were found in appellant's room, to which the officers were lawfully admitted when they took appellant there upon his arrest on a misdemeanor warrant issued in unlawful solicitation of employer's customers the record indicates that the officers were acting without a search warrant at some point in their investigation, there is evidence supporting a finding that appellant consented to the search of his room. Furthermore, the question of unlawful search and seizure was not raised in the trial court. People v. Akers, 143 Cal.App.2d 224, 229, 299 P.2d 398, supra.

Appellant claims that the court erred in admitting testimony of detective Alter relating to statements made to him by appellant. However, there is substantial evidence that appellant responded affirmatively to the accusatory questions asked by the officer and in so doing made certain admissions bearing on the question of appellant's guilt. No reversible error appears in this connection.

Appellant further claims that the court erred in admitting the testimony of one Marilyn McGurren as to nude pictures taken of herself and Sandra. The record shows that such testimony was offered and received in rebuttal to the testimony of the appellant himself and that there was no error in its admission. People v. Westek, supra, 31 Cal.2d 469, 476, 190 P.2d 9.

Appellant's last contention is that he was illegally forced to stay at the Atascadero State Hospital for a period of 14 months. The record shows that after appellant had been found guilty of the charges contained in counts one and three of the information, he was committed to the Atascadero State Hospital as a sexual psychopath, first for a 90-day period of observation and diagnosis, and then for an indeterminate period of care and treatment, proceedings which were authorized under Division 6, Part 1, Chapter 4, of the Welfare and Institutions Code. People v. Gross, 139 Cal.App.2d 607, 612, 294 P.2d 88.

Appellant was convicted under counts one and three of the information. Barbara Hulsey gave testimony detailing the act which constituted the violation of Penal Code, section 288a and Patty Wolf described the conduct of appellant which constituted the violation of Penal Code, section 288 (count three), and appellant admitted this conduct. The evidence was amply sufficient to support the judgment of conviction and no reversible error appears in the record.

Judgment affirmed.

MUSSELL, Justice.

GRIFFIN, P. J., concurs.

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