Resendez

—Jesse Resendez appeals his conviction for a lewd, and lascivious act committed upon a child under the age of 14. (Pen. Code,-§ 288.)

Appellant was charged by information with a violation of Penal Code, section 288 and a prior felony conviction for rape. He admitted the prior conviction. The first jury was unable to reach a verdict and a mistrial was declared, but at his second trial the jury found him guilty as charged. The court ordered a probation report, appointed two psychiatrists to examine appellant for sexual psychopathy (Welf. & Inst. Code, § 5504), and later obtained additional psychiatric and probation reports. Upon the basis of the information before it, the court then found appellant to be a probable mentally disordered sex offender, and committed him to Atascadero State Hospital for 90-day-observation. The report from the.supérintendent at Atascadero found- appellant to' be a mentally disordered sex offender but concluded that he was not capable of benefiting from care and treatment at a state hospital. The court thereupon resumed criminal proceedings, denied probation, and sentenced Resendez to state prison for the term prescribed by law.

The record discloses the…