PEOPLE v. JENTZEN (1978)

In October 1974 defendant was charged in four counts with lewd and lascivious conduct on a ten-year-old boy, Ronald R. (Pen.Code, § 288), and in two counts with oral copulation on the same Ronald R. (Pen.Code, § 288a). While the 288 counts specified the age of Ronald R. the 288a counts did not. All counts referred to acts allegedly committed in August 1974.

Pursuant to a plea bargain defendant pleaded nolo contendere in November 1974 to one 288a count, and the remaining five counts were later dismissed. He was committed to Atascadero State Hospital as a mentally disordered sex offender. Thereafter on his return to court uncured, he was placed on probation in March 1976 for three years, one of the conditions of probation being non-association with persons under 18. In February 1978 defendant was returned to court for violation of probation, and the court found:

“I do find that you were originally convicted of this case of lewd and lascivious conduct with a ten-year-old boy. You had been living with a 15-year-old boy in San Francisco. The most important term of probation, as far as I am concerned, was that you were not to associate with minors without other personable, reputable adults. Clearly, you have violated probation in the very area that it was the most important.”

Defendant was sentenced to state prison and has appealed.

1. Defendant argues the amendment to Penal Code section 288a, effective 1 January 1976, which removed criminal sanctions for oral copulation between consenting adults but retained them when committed with a person under 18, requires the reversal of his conviction, because the count on which he was sentenced did not specify the age of the victim, and therefore no crime was charged. He relies on People v. Rossi (1976) 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313, which held that the amendment to section 288a applies to proceedings under the statute where judgment of conviction had not become final on 1 January 1976, and which vacated a non-final judgment of conviction for oral copulation between consenting adults.

The facts of the cause at bench, however, are quite different from those in Rossi, supra, in that a minor is involved. At no time during the course of the present proceedings, including the hearing on probation violation, has defendant contested the fact that the victim of his crime was ten years old. It is undisputed that defendant pleaded nolo contendere to conduct which consisted of oral copulation with a ten-year-old boy. That conduct was condemned by Penal Code section 288a at the time of its commission, and is condemned by section 288a today, viz., “(b)(1) Any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison …”¹ Because defendant's conduct remained criminal throughout, his situation is not one in which conduct formerly criminal has been made non-criminal, as in Rossi, supra.

Defendant's argument thus shrinks to a point of pleading, by which he seeks to overturn the judgment because the age of the victim was not specified in the count to which he pleaded. But at the time of defendant's plea the statute did not require an accusatory pleading to specify the victim's age. The information filed against defendant conformed to all requirements of pleading in effect at the time of accusation, and we see no need to overturn the judgment because pleading specifications to charge the particular conduct in which defendant engaged have since changed. Defendant misconceives the essential requisite for reversal under Rossi, supra, which is decriminalization of his conduct. This has not happened.

2. Defendant's arguments that the trial court erred in not fixing a determinate sentence and in not specifying the time of his eligibility of parole have become moot, in that defendant has since received a determinate sentence from the Community Release Board and been released on parole.

The judgment is affirmed.

FOOTNOTES

1.  Depending on the age of the offender, punishment for oral copulation with a minor is made more severe when the victim is under 16, and more severe still when the victim is under 14. (Pen.Code, § 288a.)

FLEMING, Acting Presiding Justice.

COMPTON and BEACH, JJ., concur.