Greenberg

Defendant was convicted of oral copulation in violation of Penal Code section 288a. The jury found it to be true that the crime was committed on a minor under 14 years of age and that the victim was more than 10 years younger than the person who committed the act upon her. This brought into play Penal Code section 288a, subdivision (c) which carries a greater punishment than the same offense without proof of the 10-year age differential. Defendant’s guilt rested on an aiding and abetting theory. Subsequently defendant was found to be a mentally disordered sex offender and was committed to Patton State Hospital for four years.

Facts

On September 3, 1978, Deputy Moran investigated a report of a suspicious vehicle parked on a street in Ontario. As he approached the vehicle he saw defendant in the driver’s seat and 21-year-old Miguel Gomez in the passenger seat. Gomez’ genital area was naked. Seated on the floorboard between Gomez’ legs was Elizabeth, defendant’s nine-year-old stepdaughter and the victim, who was naked from the waist down.

Both Elizabeth and Gomez testified to Elizabeth’s oral copulation of Gomez. There was also evidence the defendant removed Elizabeth’s…