Roberts

Defendant was found guilty by a jury of a violation of Penal Code, section 288a. From an order suspending imposition of sentence and granting probation on certain conditions, he appeals.

As a result of complaints about homosexual activity in a park's public rest room, Deputy Sheriff Gingery and Detective Martin were assigned to investigate. They stationed themselves in a space adjacent to the men’s rest room, set apart from that room by a double wood wall separated by an air space of approximately 1% inches. Several holes were drilled in the wall through which the officers could see what might be called the public portion of the men’s rest room— that area visible as one entered the room.

On the afternoon of January 27, 1966, around 3 p.m., Officer Gingery was standing on a 2-by-4 about 6 feet off the ground, peering through one of the holes. He saw a man whom he knew by name copulating his mouth with the sexual organ of a man unknown to the officers. At the same time Officer Martin was looking through a hole about 2 or 3 feet from the floor. He also saw the two men engaged in the act. They were observed by the officers from a distance of 10 or 12 feet for from 20 to 45 seconds.…