Catelli

Concurring and Dissenting.—I concur in the judgment except as to part II, to which I dissent. In my view defendant’s act in forcing Heather to lick his scrotum does not constitute oral copulation within the meaning of Penal Code section 288a. I shall explain why this is not an absurd result, as the majority holds.

In part II, the majority undertakes to define the male sexual organ as that term is used in section 288a. Essentially that definition is of the entire male reproductive system, comprising the penis, the scrotum and testes together with the internal workings thereof. I observe at the outset that section 288a since its inception has never used the words reproductive system to define sexual organ. Nor does the majority’s definition withstand historical scrutiny.

The initial California statute passed in 1915, Penal Code section 288a, criminalized “[t]he acts technically known as fellatio and cunnilingus.” (Stats. 1915, ch. 586, § 1, p. 1022.) This statute was found to be unconstitutional not because the word fellatio failed to describe the prohibited conduct but because it was not in the English language as required by former article IV, section 24 of the California…

A jury convicted defendant of 60 sex crimes committed against 3 victims. (Pen. Code, §§ 261, subd. (2); 286, subd. (c); 288, subd. (b); 288a, subd. (c), 289, subd (a). 1 Allegations that he used a knife during all but one of the offenses and inflicted great bodily injury during four of the crimes were found true. (§§ 12022.3, 12022.8.) The court determined that defendant was sane when he committed the offenses. Sentenced to 557 years in state prison, he raises numerous issues on appeal.

The published portion of this opinion addresses two issues. We consider whether defendant’s Sixth Amendment right to counsel was violated when an undercover officer met with him in the jail visiting room in hopes of obtaining incriminating statements regarding defendant’s efforts to dissuade the victims from testifying. The meeting had been arranged by an inmate who disliked defendant and wanted to obtain damaging evidence against him. On his own, and unknown to law enforcement, the inmate set up a jailhouse encounter so defendant could meet the inmate’s “friend” who would take care of the job of “silencing” the victims. When the inmate informed the district attorney’s office of the…

[Opinion certified for partial publication. [*] ]

OPINION

SCOTLAND, J.

A jury convicted defendant of 60 sex crimes committed against 3 victims. (Pen. Code, §§ 261, subd. (2); 286, subd. (c); 288, subd. (b); 288a, subd. (c), 289, subd (a). [1] Allegations that he used a knife during all but one of the offenses and inflicted great bodily injury during four of the crimes were found true. (§§ 12022.3, 12022.8.) The court determined that defendant was sane when he committed the offenses. Sentenced to 557 years in state prison, he raises numerous issues on appeal.

The published portion of this opinion addresses two issues. We consider whether defendant's Sixth Amendment right to counsel was violated when an undercover officer met with him in the jail visiting room in hopes of obtaining incriminating statements regarding defendant's efforts to dissuade the victims from testifying. The meeting had been arranged by an inmate who disliked defendant and wanted to obtain damaging evidence against him. On his own, and unknown to law enforcement, the inmate set up a jailhouse encounter so defendant could meet the inmate's "friend" who would take care of the job of "silencing" the victims.…