Yarber

*899 Opinion

Appellant Wendol Yarber was found guilty by jury of 18 counts of oral copulation with a minor (Pen. Code, § 288a), all but 2 of which were with minors under the age of 14 and more than 10 years younger than he (Pen. Code, § 288a, subd. (c)), and 2 counts of contributing to the delinquency of a minor. His wife, appellant Bonnie Sue Yarber, was convicted at the same trial of one count of Penal Code section 288a, subdivision (c).

Criminal proceedings were adjourned, and mentally disordered sex offender proceedings were instituted against both appellants. Ultimately Bonnie was sentenced to prison. On April 28, 1977, the court found that appellant Wendol was a mentally disordered sex offender and committed him to a state hospital. Both defendants appeal.

The testimony of five girls in their early teenage years showed that they had been present on several occasions during the early summer of 1976 in the apartment of the appellants, where they (or some of them) were allowed to view films on sexual themes, to observe sex acts between appellants, and to engage in oral copulation with appellant Wendol. Appellants did not testify, but appellant Bonnie’s sister, an alleged…

I dissent from the reversal of the conviction of Bonnie Sue Yarber.

The lead opinion appears to hold that in the absence of evidence to the contrary, intent to aid and abet may be inferred from a person’s action with knowledge of the purpose of the perpetrator of a crime. But where a contrary inference is reasonable, his knowledge of the perpetrator’s purpose will not suffice and intent must be proved by other evidence.

However, the facts of this particular case indicate that a contrary inference is not reasonable and that a shared criminal intent is undisputably indicated. Pornographic movies had been shown to the minors in appellants’ bedroom with both Bonnie Sue and Wendol present. There was testimony that on June 14, Bonnie Sue had asked Mary S. to orally copulate Wendol. (While Bonnie Sue cannot be convicted of the violation that occurred on June 17 based solely on what she did on June 14, her activities on June 14 are probative of her desires and intent on June 17.) Mary S. also testified that Bonnie Sue “asked me to eat her out while she gives Wendol a blow job.” Such evidence indicates that Bonnie Sue wanted the children to be participants and not mere…

Appellant Wendol Yarber was found guilty by jury of 18 counts of oral copulation with a minor (Pen. Code, § 288a), all but 2 of which were with minors under the age of 14 and more than 10 years younger than he (Pen. Code, § 288a, subd. (c)), and 2 counts of contributing to the delinquency of a minor. His wife, appellant Bonnie Sue Yarber, was convicted at the same trial of one count of Penal Code section 288a, subdivision (c).

Criminal proceedings were adjourned, and mentally disordered sex offender proceedings were instituted against both appellants. Ultimately Bonnie was sentenced to prison. On April 28, 1977, the court found that appellant Wendol was a mentally disordered sex offender and committed him to a state hospital. Both defendants appeal.

The testimony of five girls in their early teenage years showed that they had been present on several occasions during the early summer of 1976 in the apartment of the appellants, where they (or some of them) were allowed to view films on sexual themes, to observe sex acts between appellants, and to engage in oral copulation with appellant Wendol. Appellants did not testify, but appellant Bonnie's sister, an…