Brocklehurst

*475 Opinion

Dorothy Jean Brocklehurst (defendant) appeals from an order granting her probation following a verdict finding her guilty of a violation of Penal Code section 288a.

The conduct which was the basis of the conviction was engaged in within premises occupied by defendant as a massage parlor. To those premises Larry Taylor (Taylor), a San Diego police officer in mufti, repaired on March 14, 1969, at about 11:30 a.m., for which time he had made an appointment for a massage, after having been told by his lieutenant that if he did so and mentioned the name Frank Vernon he would be orally copulated for an additional $5.00.

Taylor was accompanied by another officer, Richard Davis (Davis) as far as the outer door. Davis remained outside while Taylor entered, met defendant, said he was Larry and had an 11:30 appointment. Later, after defendant had told Taylor to undress, he told her he was supposed to say Frank Vernon had sent him.

There were two other women in the outer rooms of the establishment. Taylor, nude except for a towel over his midsection, was in an inner room, later entered by defendant, who told him to remove the towel and get onto a table, which he did. After…

I concur.

I believe the judgment should be reversed and to that extent concur in the majority opinion. However, I disagree with the conclusion reached in the opinion that Officer Taylor, because of his conceded participation in the act prohibited by Penal Code section 288a, became an accomplice as a matter of law. I also disagree with the broader apparent holding the so-called feigned accomplice rule has no applicability to common law general intent crimes.

The question of whether Officer Taylor was a real or feigned accomplice was never considered in the trial court. It should have been. And the failure of the trial court to instruct the jury on the law of accomplices constitutes reversible error. (People v. Jones, 228 Cal.App.2d 74, 94-95 [ 39 Cal. Rptr. 302 ]; People v. Featherstone, 61 Cal.App.2d 793, 796-797 [ 155 P.2d 685 ].)

When the question of an accomplice arises in a trial, the proper procedures to be followed under varying circumstances are outlined in People v. Jones, supra, 228 Cal.App.2d 74 , where at pages 94 and 95 the court stated: “Whether a witness for the prosecution is or is not an accomplice may be a question of law or fact. Where the facts with respect…

Dorothy Jean Brocklehurst (defendant) appeals from an order granting her probation following a verdict finding her guilty of a violation of Penal Code section 288a.

The conduct which was the basis of the conviction was engaged in within premises occupied by defendant as a massage parlor. To those premises Larry Taylor (Taylor), a San Diego police officer in mufti, repaired on March 14, 1969, at about 11:30 a.m., for which time he had made an appointment for a massage, after having been told by his lieutenant that if he did so and mentioned the name Frank Vernon he would be orally copulated for an additional $5.00.

Taylor was accompanied by another officer, Richard Davis (Davis) as far as the outer door. Davis remained outside while Taylor entered, met defendant, said he was Larry and had an 11:30 appointment. Later, after defendant had told Taylor to undress, he told her he was supposed to say Frank Vernon had sent him.

There were two other women in the outer rooms of the establishment. Taylor, nude except for a towel over his midsection, was in an inner room, later entered by defendant, who told him to remove the towel and get onto a table, which he did.…