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PEOPLE v. WHITNEY

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

The PEOPLE, Plaintiff and Respondent, v. Earl WHITNEY, Defendant and Appellant.

Cr. 21202.

Decided: May 19, 1972

Herbert F. Blanck, Encino, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., William R. Pounders and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

Defendant originally was charged, in five counts, as follows: (count I) oral copulation, in violation of section 288a of the Penal Code; (count II) sodomy, in violation of section 286 of the Penal Code; (count III) oral copulation, in violation of section 288a; (count IV) child molestation, in violation of section 647a of the Penal Code; and (count V) child molestation, in violation of section 647a of the Penal Code. He pled not guilty. Count IV was dismissed, count V was severed, and he went to trial, before a jury, on counts I, II and III.1 The jury returned a verdict of guilty on count II (sodomy) but was deadlocked on counts I and III. A mistrial was declared as to those counts, proceedings under the Mentally Disordered Sex Offender Act were instituted, resulting in defendant's commitment under that act. He has appealed from the order of commitment.2 We reverse.

On this appeal, defendant contends: (1) That the evidence does not support the conviction: and (2) that section 286 of the Penal Code does not apply to the ‘pathic’ subject of the conduct. The second contention was raised and rejected in People v. Boud (1955) 136 Cal.App.2d 572, and in People v. Featherstone (1945) 67 Cal.App.2d 793, 155 P.2d 685. We see no reason to again examine the issue.

The testimony of the boy involved in counts I, II and III clearly was sufficient to have sustained a conviction on all three counts, had it been believed and if it was adequately corroborated.3 As far as we can determine, the corroboration consists of the following evidence: (a) defendant's alleged admission to a friend of the victim that he had committed 288a; (b) evidence of witnesses who had seen defendant and the victim in bed together when nude; (c) other evidence tending to show that defendant was a homosexual. On the record before us, we cannot find that that evidence met the statutory requirement for corroboration of the sodomy charge.

The rule applicable in cases such as this was stated 57 years ago in People v. Robbins (1915) 171 Cal. 466, 471, 154 P. 317, 319, as follows:

‘Following the rule that evidence offered for the purpose of corroborating an accomplice must tend to connect the accused with the offense charged, it has been held that there must be corroborating testimony by some witness other than the accomplice as to some act or fact which is an element of the offense charged.’ (Emphasis added.)

It follows that, unless we can say that evidence that defendant is homosexually inclined, and that he has evidenced that inclination by committing acts of oral copulation, is the basis for a reasonable inference that his inclinations also lead to acts of sodomy, the record before us is barren of the required corroboration. We cannot draw the inference which the People urge us to draw. Whether a person with the sexual characteristics herein attributed to defendant is inclined to commit a variety of sexually deviant acts, or whether he is inclined to specialize in his deviation, is not a matter of such common knowledge that we can decide it as a matter of judicial notice. The inference urged by the People may be correct, but absent some expert testimony or the citation to some recognized text book, we cannot say that the prosecution's burden was sustained.4

The judgment (order) is reversed.

FOOTNOTES

1.  Counts I, II and III all involved conduct with the same boy; counts IV and V involved conduct with two other young boys.

2.  Penal Code, section 1237, subdivision (1) reads as follows:‘An appeal may be taken by the defendant:‘1. From a final judgment of conviction except as provided in Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, or the indeterminate commitment of a defendant as a mentally disordered sex offender shall be deemed to be a final judgment within the meaning of this section. The commitment of a defendant for narcotics addiction shall be deemed to be a final judgment within the meaning of this section 90 days after such commitment. Upon appeal from a final judgment the court may review any order denying a motion for a new trial.’

3.  It is conceded that the alleged ‘victim,’ 14–15 years of age, was a consenting participant in the conduct involved and was, therefore, an accomplice whose testimony required corroboration.

4.  Of the cases cited to us by counsel, only one approaches the issue herein involved. In People v. Perras (1959) 174 Cal.App.2d 396, 344 P.2d 630, evidence that showed only homosexual tendencies was held adequately to corroborate the victim's testimony as to violations of section 288a. But, in that case, as it reached the appellate court, there was no issue as to what kind of deviation had occurred. Therefore, testimony tending to show deviant tendencies was sufficient to connect defendant with the only deviancy suggested against him. Clearly, that case is of no help in the situation now before us in the case at bench. Other cases cited, again, involve only a single type of deviation and do not reach the issue before us.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.

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