Huston

Convicted of violation (1) of section 288, Penal Code, commission of lewd and lascivious acts upon a 10-year-old girl, and (2) of section 288a, Penal Code, cunnilingus (defined in 25 C.J.S., p. 28), defendant appeals from the judgment and the order denying his motion for a new trial. He was also charged with and admitted a prior conviction and imprisonment for violation of section 288. Appellant was adjudged a potential sexual psychopath and committed to Atascadero State Hospital for observation, with the result that the superintendent and medical director reported that he is a sexual psychopath who would not benefit by treatment in a state hospital and who is a menace to the health and safety of others. Probation was denied and defendant sentenced to prison for the term prescribed by law, the sentences to run concurrently.

Appellant attacks the sufficiency of the evidence to support the conviction upon the ground that the testimony of the victim, the 10-year-old girl, is inherently improbable. This argument will not lie except where there exists “either a physical impossibility that they [the witness’ statements] are true, or their falsity [is] apparent without resorting to…