Schaletzke

Defendant bases his appeal from the judgment on the grounds that the court did not fulfill its duty when it sentenced the defendant to state prison instead of committing him to the state hospital pursuant to sections 5512 and 5518 of the Welfare and Institutions Code; and that such commitment to prison without treatment of a mentally disordered sex offender inflicts cruel and unusual punishment and deprives defendant of equal protection and due process of law.

A plea of guilty to violation of section 288, Penal Code, was entered by defendant. The issue of a prior conviction charged against him was deferred until the time of hearing on probation and sentence. The case was referred to the probation department for investigation and report, and two psychiatrists were appointed to examine the defendant to ascertain if the defendant was a mentally disordered sex offender.

At the hearing on probation and sentence the trial judge considered the reports of the probation officer and doctors. The probation report raised the issue of eligibility for hospital commitment because of the record of a prior felony conviction. Bach of the doctors reported defendant to be "a mentally disordered sex…