Dontanville

This is an appeal from a judgment of conviction of a violation of section 288 of the Penal Code. The circumstances surrounding the conviction are as follows:

On July 31, 1967, the offense charged in the present case was committed upon Kelly Lee Hopper.

On September 18, 1967, defendant was arrested and charged with the August 9, 1967, murder of two young girls, the Barili sisters.

On September 28, 1967, Kelly Lee Hopper and three of her brothers identified defendant by picking his photograph from a set of 13 assembled from a file of about 150 by Sergeant Koury of the Los Angeles sheriff’s office.

Defendant’s trial on the murder charges started November 20, 1967. Kelly Lee Hopper, her mother, and her stepbrother, Raymond Marlow, testified at that trial on November 21, 1967. Defendant was convicted of murder in the first degree. Defendant obtained new counsel, moved for and was granted a new trial on the murder charges. After a month-long trial a jury found him not guilty. No evidence concerning the instant charge was presented at the second murder trial. Following his acquittal defendant was committed to department 95 of the superior court where proceedings were…