Opinion
Rehearing Denied March 20, 1967.
For Opinion on Hearing, see 63 Cal.Rptr. 569, 433 P.2d 473. Donald Markell Succop, in pro. per.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Michael J. Smolen, Deputy Atty. Gen., for plaintiff and respondent.
KINGSLEY, Associate Justice.
Defendant was charged by information with indecent exposure in violation of section 314, subdivision 1, of the Penal Code, with a prior conviction of violation of section 314, subdivision 1, of the Penal Code, a felony. He was also charged with a prior conviction of indecent exposure in the State of Washington. The cause was tried in propria persona before a jury, defendant pled not guilty and admitted the priors. Defendant was found guilty and was found to be a probable mentally disordered sex offender. Proceedings were suspended and defendant was committed to Atascadero for a period not exceeding 90 days. Defendant filed notice of appeal from the commitment which the Supreme Court held not an appealable order. (People v. Succop (1966) 65 A.C. 523, 55 Cal.Rptr. 397, 421 P.2d 405.) Defendant was found not amenable to treatment and he was returned for further proceedings. The court read and considered the probation report and probation was denied. Defendant was found guilty and was sentenced to imprisonment in the state prison for the term prescribed by law.
Mr. Morehead, a police officer for the City of Monrovia, received a call on Saturday, March 27, 1965, right after 12 noon. He went to a residence on Olive Avenue in Monrovia with Sergeant Campbell, where they met a Mr. Duryee and a Mrs. Herber. The four people proceeded into Mrs. Herber's house, went to a window where Officer Morehead looked out and observed the defendant standing just outside of a house with no clothes on. About nine children and two women were standing outside. Defendant placed his right hand on his private parts and moved it back and forth. As the officer left the residence and proceeded to the driveway he noticed the defendant go back inside. The officer started running towards the door, the defendant closed the door and the officer forced it open, the door struck the defendant, pushed him over and the officer placed defendant under arrest. At that time, defendant was still undressed. The police informed defendant that he was arrested for indecent exposure.
Mrs. Herber, a neighbor, also saw defendant touching his private parts in front of children playing outside. James Duryee, a neighbor, and the informant who called the police, also saw defendant holding his private parts in the presence of children. Sergeant Campbell, the other officer who responded to Mr. Duryee's call, also saw defendant engage in the above stated behavior while he had no clothes on and while in the presence of children.
At the time of the arrest there was wine on the table and a partially full glass. An officer testified defendant was under the influence (meaning liquor) but 'definitely not drunk.'
Defendant was not informed of his constitutional rights until he got to the police station, and there was no interrogation by the police in defendant's home.
The defense called several witnesses, including defendant's employer and co-employee, who testified that defendant drank a great deal. Mrs. McNeal, a lady who worked with defendant, testified that he drank most of the time. She said that on the day of the arrest the was with the defendant, that the neighborhood children had been making a great deal of noise, that she had a sore jaw, and that the children were dropping things from the windowsill into her bathroom. Mrs. McNeal testified that defendant normally want around the house nude and that he had been drinking continuously on the day of the arrest.
Defendant in a propria persona brief raises many points of a non-legal nature which need not be discussed in this opinion. We have considered several issues that he has raised, in addition to several other points not raised in his brief which merit some discussion.
I
There appears to have been reasonable cause for the arrest. An officer may arrest without a warrant whenever he has reasonable cause to believe that the person arrested has committed a public offense in his presence. (Pen.Code § 836, subd. 1.) Also, a peace officer may arrest without a warrant when a person has committed a felony although not in his presence (Pen.Code § 836, subd. 2), and the term 'felony' includes 'felony-misdemeanor.' (Witkin, Cal.Criminal Proc., § 102, p. 101.) However, the person making the arrest must inform the person to be attested of the intention to arrest him, of the cause of the arrest, and the authority to make it. (Pen.Code § 841.) Here, defendant was informed of the reason for his arrest immediately after the arrest, but was not informed of the intention to make the arrest or the authority to make the arrest. It is a long established rule that where a party is apprehended in the commission of an offense or on fresh pursuit afterwards, failure to give notice of the official capacity of the person making the arrest or the cause of the arrest does not invalidate the arrest. (People v. Pool (1865) 27 Cal. 572.) Strict compliance with Penal Code section 841 was unnecessary to support a legal arrest in People v. Valenzuela (1959) 171 Cal.App.2d 331, 340 P.2d 685, and People v. Herman (1958) 163 Cal.App.2d 821, 329 P.2d 989, where defendants were actually engaged in the commission of the offense at the time of the arrest. Since defendant in the instant case was standing outside his house committing the offense when the officer approached him in an attempt to make an arrest, we hold that compliance with Penal Code, section 841, was unnecessary to validate the arrest.
There appears to have been a technical failure to comply with section 844 of the Penal Code, which requires a demand and refusal before officers may break and enter to effect an arrest. However, noncompliance with section 844 merely affects the admissibility of evidence secured as a result of the improper entry. In the case at bench, the evidence of defendant's guilt rests on things seen by the officers prior to the arrest; the evidence of conditions in the house added nothing to the prosecution's case and, in fact, if significant at all, aided the defense theory of drunkenness.
II
In a prosecution for sexual crimes, the court ordinarily should instruct, on its motion, that the charge is easily made and hard to disprove (People v. Nye (1951) 38 Cal.2d 34, 237 P.2d 1), where the victim is the prosecuting witness (People v. McCracken (1952) 39 Cal.2d 336, 349, 246 P.2d 913). In the instant case no such instruction was given. The rule requiring cautionary instructions is not confined to rape cases or to cases where the prosecuting witness was a minor. (People v. Woodworth (1956) 147 Cal.App.2d Supp. 831, 305 P.2d 721.) Such instructions have been held necessary in the case of lewd vagrancy (People v. Woodworth, supra), and in the case of lewd conduct with a child (People v. Putnam (1942) 20 Cal.2d 885, 889, 129 P.2d 367.) However, in the case at bench, the victim was not the prosecuting witness and, therefore, the instruction was not required. Also, in view of the overwhelming evidence indicating that the crime had been committed, and the absence of any conflicting evidence, failure to give such an instruction, even if required, could not possibly be deemed prejudicial to the defense.
III
Although defendant was not advised of his right to counsel until at the police station, there was no earlier process of interrogation and no admissions, nor did he raise this issue on the trial level. Therefore, he has no complaint.
We will now turn to those arguments raised by defendant in his own brief.
IV
Defendant's first objection is, that he was not indicted by the grand jury. However, the alternative procedure by information is consistent with due process (Hurtado v. People of State of California (1884) 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232) and is proper in this state. (Cal.Const., art. I, § 8; Pen.Code §§ 682, 737, 739.)
V
Plaintiff alleges that Penal Code section 314, which reads in part: 'Every person who willfully and lewdly, either 1. Exposes his person, or the private parts thereof, in any public place, or County of Contra Costa v. East Bay Municipal Util. Dist.
People v. Sanchez People v. WilliamsDefendant also asserts that the terms 'willfully' and 'lewdly' are too vague, and that the statute is therefore vague. A statute containing the word 'lewdly' was held sufficiently definite and certain in People v. Loignon (1958) 160 Cal.App.2d 412, at page 419, 325 P.2d 541, at page 545, where the court said: "To comply with the constitutional requirement of due process of law, the crime for which a defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those persons within its reach to understand and correctly apply them. * * * " We believe Penal Code section 314 in its entirety meets the above test and meets constitutional standards of definitions.
Defendant also argues that section 314 is unconstitutional in that it provides that a second conviction under subdivision 1 shall be a felony. The appellate court held in People v. Calderon (1962) 205 Cal.App.2d 566, 572 , 23 Cal.Rptr. 62, 65, that 'It is well established that statutes providing for an increased penalty for subsequent offenses are constitutional. [Citations].'
VI
It is also clear that defendant was not deprived of counsel. The court not only explained in detail the right to counsel, but urged defendant to accept the services of the public defender. The court cannot force a competent defendant to be represented by an attorney. (People v. Mattson (1959) 51 Cal.2d 777, 336 P.2d 937.)
VII
Defendant contends that the was denied adequate use of the law library. However, the minute order of April 29, 1965, stated in part, 'Remanded. Sheriff to provide law library privileges.' Furthermore, the minute order of May 18, 1965, states, 'The Sheriff is directed to provide defendant with law library privileges. Remanded.' The judge also stated in open court that the defendant is granted permission to use the law library. Defendant's argument that the sheriff did not permit him adequate use of the library is outside the record, and points outside of the record may not be considered by this court. (See People v. Justice (1959) 167 Cal.App.2d 616, 622, 334 P.2d 1031.) In any case, defendant's lengthy brief and innumerable citations cast doubt on the validity of his claim.
VIII
Defendant asserts that he had no opportunity to move for a new trial. However, the record reveals that defendant presented a lengthy oral argument after his return from Atascadero immediately before the time of pronouncing judgment. In the words of the defendant, he moved 'the judgment in arrest of judgment,' although he did not formally state that he moved for a new trial. However, the court told defendant that '* * * you may say anything you wish.' It appears defendant had adequate opportunity at this time to move for a new trial.
IX
Defendant claims that Penal Code section 1025, which requires that a defendant People v. Hoerler
Spencer v. State of TexasX
One remaining point merits discussion. Defendant asserts that his commitment to Atascadero State Hospital for 90 days pursuant to Welfare and Institutions Code section 5500 et seq., was illegal. After being found guilty, but prior to judgment, defendant was committed to Atascadero State Hospital for a period of not exceeding 90 days. Defendant sought to appeal this order of commitment, which was held nonappealable. The California Supreme Court, in People v. Succop, 65 A.C. 523, 55 Cal.Rptr. 397, 421 P.2d 405 footnote 1, ordered that this appellate court should correct the minute order of July 1, 1965, which contains two conflicting recitals of defendant's status. The typewritten portion declares that defendant is a probable mentally disordered sex offender, but the printed form states that defendant is a mentally disordered sex offender. In accord with the instructions of the supreme Court, the printed portion which states that defendant is a mentally disordered sex offender is hereby stricken.
The Supreme Court also stated in People v. Succop, 65 A.C. 523, 530, 55 Cal.Rptr. 397, 401, 421 P.2d 405, 409, 'Whatever merit there may be in defendant's claim that he was denied a proper hearing may be reviewed on the appeal from the judgment of conviction, which appeal is now pending. [Citations.]'
The People admit that, at the hearing at which the defendant was committed to Atascadero State Hospital for observation, there were procedural errors. However, if that hearing had resulted favorably to defendant (i. e. in a finding that the was not a probable mentally disordered sex offender), the result would have been that he would have been sentenced for his crime. But the ultimate result of the hearing, the observation that followed, and the superintendent's report, was that the trial court, adopting one of the two alternatives given to it under such a report by section 5512 of the Welfare and Institutions Code, resumed the criminal case and imposed the same sentence as defendant would have received had there been no proceedings under the Mentally Disordered Sex Offender Act. As a result, the errors at the commitment proceeding have not resulted in any prejudice to defendant and he cannot complain of them on this appeal.
To the extent that the proceedings under the Mentally Disordered Sex Offender Act postponed the ultimate imposition of sentence, defendant has suffered some prejudice. By analogy to subdivision (f) of section 1203.03 of the Penal Code, defendant is entitled to credit on his sentence for such period. We have no reason to assume that the Adult Authority will not take the appropriate action.
The minute order of July 1, 1965, is corrected as indicated above; the judgment is affirmed.
FILES, P. J., and JEFFERSON, J., concur.