Opinion
Hеrber Leney appeals from his conviction on two counts of misdemeanor child molesting (former Pen. Code, § 647a, now § 647.6). 1 Be argues that the superior court had no jurisdiction over the misdemeаnor counts . . . . * * We . . .* affirm the conviction . . . .*
An information was filed charging appellant, a high school teacher, in count one with a felony, anal penetration by foreign object (§ 289, subd. (a)), and in counts two, three, and four with misdemeanor child molesting (§ 647a). Counts one and two related to one minor (S.W.), while counts three and four involved two different victims. The four counts arose out of separate instances of sexual activity involving three of appellant’s students.
Appellant filed a motion to strike counts three and four, arguing that the superior court did not have subject matter jurisdiction over misdemeanors not arising out of the same conduct as the felony charge. Later appellant *268 appeared in court and announced an agreement with the prosecutor to dismiss counts onе and two in exchange for appellant’s waiver of a jury trial on counts three and four.
When trial of the remaining two counts began, the district attorney asked the court about the “possibility of Dеfendant waiving any possible irregularities regarding subject matter jurisdiction of this Court to hear the case since we’re left with two misdemeanor charges.” Defense counsel responded, “We’ve agreed that, your Honor hearing the matter as a court trial.” At the conclusion of the trial, the court found appellant guilty of both counts.
. . . . . . . . . . . . *
Relying primarily on
People
v.
McAlister
(1976)
As appellant concedes, the superior court has jurisdiction over a misdemeanor which has been properly joined with a felony count. (People v.
Clark
(1971)
Kellett
discusses two rules regarding joinder. The narrower rule, relied upon by appellant and the court in
McAlister, supra,
pertains to situations in which a prosecutor
must
join offenses.
(Kellett
v.
Superior Court, supra,
Section 954 providеs a broad basis for discretionary joinder of criminal charges. It provides, in relevant part: “An accusatory pleading may charge two or more different offenses connected tоgether in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts,. . .” In
In re McKinney
(1968)
The phrase regarding offenses “connected together in their commission” under section 954 includes offenses that share a common element, such as the use of a defendant’s home to commit the crime, or commission of several crimes against male juveniles.
(Aydelott
v.
Superior Court
(1970)
Section 954 also permits joinder оf offenses “of the same class of crimes.” Offenses are of the same class when they possess common attributes, such as lewd conduct toward young female minors.
(People
v.
Moore
(1986)
*270 Appellant argues that the misdemeanor child molesting offenses charged herein arе not of the same class, did not have common elements, and were not the result of a series of connected transactions. Only the latter statement withstands analysis. As disclosed in the preliminary hearing transcript, the felony count of anal penetration regarding S.W. arose out of an incident where one of appellant’s male high school students was watching a football gаme at appellant’s home. Appellant and the student were sitting on the bed, when appellant began wrestling with the student, forced him to the ground, and committed the charged act. Appellаnt told the boy he was just joking around. The misdemeanor count regarding S.W. arose from an incident at appellant’s apartment when appellant and the student were looking at a basebаll schedule. Appellant held the schedule on the minor’s lap and laid his hand on the student’s crotch. When S.W. protested, appellant claimed to be joking. The other two misdemeanor chаrges arose out of incidents at appellant’s apartment where he held a script, in óne case, and a magazine, in the other, in the student’s lap, and touched the boy’s genitals. Again, aрpellant claimed to be joking.
The misdemeanor charges occurred at appellant’s home, involved sexual touching of male students, involved use of a magazine in the student’s lap, аnd a claim that appellant was joking. Similar circumstances were held sufficient to justify joinder of the charges in
Aydelott
v.
Superior Court, supra, 7
Cal.App.3d 718, 722-723, and
People
v.
Moore, supra,
Appellant correctly points out that
McAlister
appears to distinguish
Aydelott,
by citing it in connection with the statement that section 954 deals with joinder of offenses involving separate violations, defendants, times and victims, and that it
presumes
jurisdiction over each offense joined.
(People
v.
McAlister, supra,
Clearly, this is contrary to
Kellett
and
McKinney. McAlister
mistakenly relied on the portion of
Kellett
dealing with mandatory joinder when it statеd that a superior court only has jurisdiction over misdemeanors “where the same defendant is also concurrently charged with one or more felonies arising out of the same act or course of conduct.”
(People
v.
McAlister, supra,
We conclude that the felony and misdemeanor cоunts in the instant case were “connected together in their commission” in that they shared the common elements of use of appellant’s home to commit crimes against male juveniles. In addition, the crimes were of the same class, in that they all involved similar sexual misconduct toward minor male students. The superior court had jurisdiction over the misdemeanor charges by virtue of their bеing properly joined with the original felony charge.
. . . . . . . . . . . . . . *
The judgment . . .* * is affirmed.
Newsom, Acting P. J., and Holmdahl, J., concurred.
Appellant’s petition for review by the Supreme Court was denied November 30, 1989.
Notes
All statutory references are to the Penal Code.
See footnote, ante, page 265.
See footnote, ante, at page 265.
Jurisdiction over subject matter is conferred by law. Appellаnt’s purported waiver of jurisdictional defects at the beginning of trial is of no effect.
(Griggs
v.
Superior Court
(1976)
In a footnote, the
McAlister
court speculates that the dismissal was based on a lack of jurisdiction of the superior court ovеr a misdemeanor, citing
In re Joiner
(1960)
See footnote, ante, page 265.