Earl

One Eldridge Rhodes and defendant-appellant Thomas S. Earl were charged with sex perversion, under Penal Code, section 288a. The jury trial was waived and both defendants were found guilty. The matter was referred to another department for sexual psychopathy proceedings. A motion for new trial was denied. Appellant was certified for examination as a sexual psychopath. A hearing was had and he was ordered placed temporarily with the Department of Mental Hygiene at Atascadero. Only appellant Earl appeals from the order denying a new trial, which appeal is allowable in such a proceeding. (Pen. Code, § 1237, subd. 2; Cal. Rules of Court, rule 31(a). )

Facts

Two police officers, assigned to the vice squad, while in a police car, on July 1, 1962, had occasion to observe the two defendants together about 6 p.m. at Fifth and Market Streets in San Diego. They had received complaints about two male Negroes, whose description they had, indicating that they had been propositioning servicemen in the area on a pretext of setting up an opportunity for prostitution with a female. Their modus opcrandi was to direct the servicemen to nearby hotels, one of which was the Service Hotel. Defendant…