
    [Crim. No. 12626.
    Second Dist., Div. Three.
    Mar. 26, 1968.]
    THE PEOPLE, Plaintiff and Respondent, v. JOHN LEE BROWN, Defendant and Appellant.
    
      John Lee Brown, in pro. per., and Gilbert F. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
    Thomas C. Lynch, Attorney General, William E, James, Assistant Attorney General, and David Gould, Deputy Attorney General, for Plaintiff and Respondent.
   FRAMPTON, J.

pro tem.—Defendant was charged by information with violation of section 288 Penal Code (lewd and lascivious act upon the body of a child under 14 years of age) in two counts. He was also charged with four prior convictions of felony and with having served a term of imprisonment in the state prison upon each of such convictions. The priors alleged were for burglary, a felony, in the State of Alabama on April 4, 1938; attempted robbery, a felony, on October 18, 1955, in the State of California; burglary, a felony, on October 18, 1955, in the State of California, and violation of section 288 Penal Code, a felony, on October 15, 1962, in the State of California.

Defendant entered a plea of not guilty and on the day set for trial he admitted the truth of the allegations with respect to the second, third and fourth priors and the allegations as to the first prior were stricken on motion of the district attorney.

The cause was tried before a jury which returned its verdicts finding the defendant guilty as charged on both counts.

The minutes of the court disclose that on May 10, 1966, upon the return of the jury verdicts, a probation report was ordered, the probation hearing, motion for a new trial, sentencing, “and further proceedings under Section 5504 Welfare and Institutions Code” were continued to June 9, 1966. Two psychiatrists were appointed to examine the defendant and to make their reports pursuant to the provisions of section 5504 of the Welfare and Institutions Code. On June 9, 1966, the record discloses that the motion for a new trial was denied as to count one and was granted as to count two, and that count two was dismissed on motion of the district attorney. At this time, according to the court’s minutes, the trial judge made the following finding: “The Court finds that Defendant is. a Mentally Disordered Sex Offender but will not benefit by hospital treatment.” Probation was denied, and the defendant was sentenced to state prison. There is nothing in the record to indicate that the defendant was ever certified for hearing to determine whether he was a mentally disordered sex offender within the meaning of chapter 4, part 1. division 6, of the Welfare and Institutions Code, as provided by section 5501 of such code, or that a hearing was had to determine such question as is provided in sections 5503 et seq. of such code.

Section 1203 of the Penal Code provides in part that “except as hereafter provided in this section, probation shall not be granted ... to any defendant unless the court shall be satisfied that he has not been twice previously convicted of felony in this state. . . .

“In unusual cases, otherwise subject to the preceding paragraph, in which the interests of justice would best be served thereby, the judge may, with the concurrence of the district attorney, grant probation. ’ ’ There was no finding by the trial judge that the case was unusual, and that it was one in which the interests of justice would best be served by the granting of probation, nor is there anything in the record to indicate that the district attorney would have concurred in the granting of probation, had the trial judge made such a finding and indicated his desire to grant probation. Section 5500.5 of the Welfare and Institutions Code provides in part that “this article shall not apply ... to any person ineligible for probation under the Penal Code. ’ ’

The defendant urges three grounds of error upon which he seeks a reversal of the judgment. They are (1) insufficiency of the evidence to sustain the verdict; (2) the trial court erred in finding him to be a mentally disordered sex offender, and (3) error in the giving of instructions.

The Facts

In January 1966, Cynthia, who was 11 years of age, was living at 464 East 27th Street, in the City of Los Angeles with her mother, father, brother and grandmother. Defendant, Cynthia’s uncle, came to her house on January 29, 1966; he drove into the driveway, got out of his vehicle and came upon the porch of the house, at which time he asked Cynthia if her mother or her father was at home. Cynthia replied that they were not at home. Defendant then said that he would like to see Cynthia’s grandmother, who at that time was not well and was confined to her bed. She opened the door for defendant who then went to the grandmother’s room. Finding the grandmother asleep, the defendant then told Cynthia to go to the bathroom. Cynthia refused this request, whereupon the defendant shoved her into the bathroom and closed and locked the door.

In the bathroom the defendant told Cynthia to pull up her dress. Upon her refusal to comply with this request, the defendant pulled, down her Underpants, grabbed both of her arms and forced her to lie on her back on the floor. At this juncture, Cynthia testified that the deféndant unbuttoned her bítiúse and began “to play with my breasts and between my legs.” The defendant then dropped his pants and placed his private parts between Cynthia’s legs, touching her private parts. After this was over the defendant left the bathroom after telling Cynthia to “wash up.” Cynthia remained in the bathroom where she washed what she described as a “white and slimy like” substance from her privates and from between her legs.

The defendant told Cynthia not to tell her mother what he had done to her and said that if she did tell her mother, ‘ ‘ he would do something worser.” Cynthia testified that when her mother came home on the night of January 29th, she questioned Cynthia about the way she was walking, she examined Cynthia’s privates then took her to a doctor. Cynthia then told her what had happened.

Cynthia’s mother testified that when she saw Cynthia, she appeared to be walking as if in pain, “it was an unusual walk, as if she were ... as if she was hurting or something”; she then examined Cynthia’s privates and “She had heavy white liquor up in her,” and the exterior of her privates were bruised, soiled and very dirty; she took her to a doctor who examined her; that Cynthia then told her what had happened.

The defendant testified that he had gone to Cynthia’s house on January 29, 1966; had driven his car into the driveway and blew his horn; he stopped his vehicle and walked to the garage to look for a case of soap; as he was looking for the soap, Cynthia came to a window of the house and called out saying, “Hey, what is the big idea . . . Mommy is not here”; he did not enter or approach the house; he said “Well, I guess I will take one of the puppies with me now, one of the dogs here with me now,” and Cynthia responded, “Oh, no, don’t do that Johnny,” whereupon he backed his ear out of the driveway and left, telling "Cynthia to “Tell Ethel [Cynthia’s mother] that I have been by here, ’and I will see you later. ’ ’ Defendant testified further that he had never placed his hands on Cynthia ‘1 in my whole life. ’ ’

The defendant points out certain inconsistencies between Cynthia’s testimony at the preliminary hearing and her testimony at the trial relating to the time of day that the offense occurred and to the type of shoes the defendant was wearing at such time. We have examined the record of the oral proceedings in these respects and we cannot say, as a matter of law, that these discrepancies are of such a nature as to totally destroy the testimony of the complaining witness. The court on appeal will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) The testimony here furnishes sufficient facts to sustain the jury’s finding of guilt.

The defendant’s contention that the trial court erred in finding him to be a mentally disordered sex offender must be sustained. The Legislature, in enacting section 1203 of the Penal Code, laid down the policy of the law to be that-a defendant who had twice previously been convicted of felony was ineligible to receive probation, unless the judge found that the defendant’s case was an unusual one in which the interests of justice would best be served by the granting of probation, and where there was such a finding by the judge, then before probation could be granted it would be necessary to obtain the concurrence of the district attorney before the judge could act in accordance with such finding. It is our opinión that it was unnecessary for the trial court to have found that the defendant’s case was not unusual and that the interests of justice would not be best served by the granting of probation in order to render him ineligible therefor, as the Legislature had already rendered such a finding immaterial. AA7e are of the opinion that in the case at bench the defendant was ineligible to receive probation by reason of his prior convictions, under the policy declared by the Legislature, and that he remained ineligible unless the court made a positive finding in his favor, as provided in section 1203 of the Penal Code, and the district attorney concurred in granting probation. (People v. Cox, 259 Cal.App.2d 653 [66 Cal.Rptr. 576], 2d Crim. 13036, decided Feb. 29, 1968; but see People v. McGill, 257 Cal.App. 2d 759, 763-764 [65 Cal.Rptr. 482] ,)

The defendant being ineligible for probation, it was error for the court to consider proceedings under sections 5500 et seq. of the AA7elfare and Institutions Code. Assuming that it was the intent of the trial judge to invoke the procedures provided in the above sections, the record discloses that such procedures were not followed. In the circumstances here shown it was error for the trial court to make a finding that the defendant was a mentally disordered sex offender. (People v. Foster, 67 Cal.2d 604, 608 [63 Cal.Rptr. 288, 432 P.2d 976]; People v. Succop, 67 Cal.2d 785 [63 Cal.Rptr. 569, 433 P.2d 473].)

The defendant urges that the instructions given relating to the credibility of a witness and the right of the jury to be the sole judge of the credibility of a witness in the face of conflicting statements bearing upon the impeachment of such witness, were confusing and prejudicial. The criticized instructions are set forth below. Defendant contends that these instructions told the jury to disregard any testimony tending to impeach the prosecutrix. We do not agree with this contention. The instructions, viewed as a whole, gave the jury a reasonable and proper guide as to its duty in weighing and judging the credibility of testimony received in evidence.

The order determining the defendant to be a mentally disordered sex offender is vacated. The judgment is affirmed.

Ford, P. J., and Moss, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 22,1968. 
      
       Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
     
      
       The court in McGill, in referring to language found in People v. Ware, 241 Cal.App.2d 143 [50 Cal.Rptr. 252], states that such language suggests that in order to make a person convicted of an offense wholly ineligible, the court should make an express finding that the ease is not an unusual one where the interests of justice demand a departure from the declared policy of the Legislature.
     