Frazier

A jury found defendant and another male inmate of the California Medical Facility guilty of sodomy (Pen. Code, § 286). Both were sentenced to prison. Only defendant Frazier’s appeal is before us.

A correctional officer of the prison, conducting a search of cells for contraband, entered the apparently unoccupied cell assigned to Frazier. A blanket was draped over the end and side of the bed. The officer lifted it, and beneath the bed saw the two defendants, nude, engaged in an act of sodomy. No evidence was introduced by the defense.

Appellant argues that his conduct is constitutionally protected under the doctrine of a recent decision (Griswold v. Connecticut, 381 U.S. 479 [ 14 L.Ed.2d 510 , 85 S.Ct. 1678 ]). Although seven justices concurred in the judgment of reversal in Griswold , there are three concurring opinions and two dissents. Thus the precise ground of decision is not clear. The majority opinion turns on the right of privacy in the marriage relation, “an association for as noble a purpose as any involved in our prior decisions” (p. 486). The concurring opinion of Justice Goldberg, joined by two other justices, emphasizes the Ninth Amendment, but also turns upon…