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PEOPLE of the State of California, Plaintiff and Respondent, v. Verga OLIVER, Defendant and Appellant.*
In an information filed in Los Angeles County the appellant was charged with a violation of Section 207 of the Penal Code (kidnapping), and in a separate count with a violation of Penal Code Section 288. A prior felony conviction was alleged and later stricken upon motion of the District Attorney. The appellant pleaded not guilty and was tried before a jury and convicted on both charges. A motion for a new trial was denied. Although the appellant's ‘request for an appeal of my sentence and judgment’ does not comply with the Rules on Appeal, we shall consider the matter as an appeal from the judgment and from the order denying the motion for a new trial.
A reśume ́of some of the facts established in the trial are as follows:
On November 13, 1958, Roger DeVries, a child of two years and one month, lived with his mother and stepfather in an apartment house on Figueroa Street near Third Street in Los Angeles. Sack Alley was to the rear of the apartment building in which Roger lived. The mother had permitted the boy to go out to play in the alleyway at about 3:00 to 3:30 p. m. At that time the boy was fully clothed. The mother had never seen the appellant before the date in question and she had never given the appellant permission to take the boy to any other place in the city, or at all.
An automobile parking lot attendant, employed at a car lot located on Third Street and Sack Alley, saw the appellant for the first time at about 3:00 or 3:30 p. m. sitting down in the alley. A short time later the appellant was told to leave the car lot premises. A few minutes thereafter the appellant was seen sitting in a parked car on the lot and the attendant directed him to leave. On the occasions just mentioned the appellant was alone. A short time after the attendant of the parking lot saw the appellant headed north in Sack Alley, leading Roger DeVries by the hand.
A lady who lived at 251 1/2 S. Bunker Hill Avenue heard a baby cry at about 5:00 p. m. and went to investigate the source of the sounds. She saw the appellant sitting and leaning over the child and then called the police. The officers saw the appellant from over a wall; his pants were down to his knees, his shirt was above his waist and the lower parts of his body were exposed. The child was beside him. Without describing the circumstances in detail, suffice it to say that an act was being committed which obviously came within the definition of the crime prohibited by Section 288 of the Penal Code. The body of the child was in a condition such as might be expected if such an offense had been committed. The police talked to the appellant and he said that he did not remember where he had picked up the boy but that it was ‘somewhere down the street.’ Appellant also stated to the officers ‘We were just up here playing with each other. He'd play with me, and then I'd play with him.’ It was the opinion of one of the officers that appellant had been drinking but that he was ‘not what I would call intoxicated.’ The appellant clearly answered the questions which were put to him by the officers, his talk was not thick nor did he slur his words.
By the shortest route it was 650 yards from the parking lot to the place where the police located the appellant with the boy.
The appellant testified that he was drunk and did not remember what had occurred.
Appellant now asserts, as best we can decipher from his somewhat incongruous brief, the following: (1) that he was convicted on perjured and contradictory testimony, that he was drunk and that he got the child from an unidentified third person of ‘Spanish extraction;’ (2) that the public defender was not as aggressive as he should have been and did not properly represent the appellant; (3) that he never received the transcript of the arguments of counsel to the jury or the instructions of the judge to the jury.
This Court is required to consider the evidence in the light most favorable to the respondent and all intendments are in favor of the judgment. People v. Shannon, 28 Cal.App.2d 677, 680, 83 P.2d 302. We cannot disturb the verdict of the jury unless it is made ‘clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.’ People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780.
The appellant asserts that there was perjured testimony and that there were inconsistencies in the testimony of the various prosecution witnesses. The alleged perjury cannot be determined by this Court under the circumstances. People v. Treggs, 171 Cal.App.2d 537, 545, 341 P.2d 342; People v. Martin, 128 Cal.App.2d 361, 364, 275 P.2d 635. Error is not presumed and unless it is pointed out to this Court where such error exists, we have no duty to search the record in an effort to find it. People v. Montez, 175 Cal.App.2d 303, 345 P.2d 938.
In any event a mere inconsistency is not sufficient cause under the circumstances of this case to call for a reversal. People v. Carr, 170 Cal.App.2d 181, 186–188, 338 P.2d 479.
The child in this case was only two years and one month of age and it is doubtful that he could have consented, in the legal sense, to go along with the appellant. ‘Consent’ has been defined as follows: ‘Consent in law means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another.’ People v. Kanngiesser, 44 Cal.App. 345, 347, 186 P. 388, 389. A youngster of two years of age is, in our opinion, incapable of a full appreciation of the danger of wandering away from his home with a complete stranger (who himself contends that he was drunk). We hold that there was no consent upon the part of the child to go with the appellant under the circumstances disclosed by the evidence in this case. See, People v. Phillips, 173 Cal.App.2d 349, 354, 343 P.2d 270. See, also, People v. Williams, 12 Cal.App.2d 207, 209, 55 P.2d 223, 224, wherein it is stated:
‘* * * the ‘proof’ must have been ‘clear’ not only that the child understood the ‘nature and effect’ of the act that constituted and offense; that the act was ‘forbidden’; that, if he were to commit it, he would be punished; but intimates also that, if he committed the offense, he must have been conscious at that time that ‘within the meaning obviously intended by the code’, he was committing a ‘wrongful’ act. People v. Becker, 140 Cal.App. 162, 35 P.2d 196. It also has been held that, for the purpose of adjudging a child an accomplice in the commission of the offense, it will not suffice that the child ‘was ignorantly indifferent and passive in the hands of the defendant, even to the point of submission’; but it must be affirmatively established that the ‘boy actually and knowingly consented to be the victim of the alleged assault.’ People v. Dong Pok Yip, 164 Cal. 143, 127 P. 1031, 1032. Furthermore, in order to constitute the child an accomplice in the perpetration of the crime, it must appear by ‘clear proof’ that he was possessed of ‘knowledge of good and evil’ and had sufficient mental ‘capacity to discern the moral quality of defendant's said conduct.’ People v. Camp, 26 Cal.App. 385, 147 P. 95, 96.'
We have read the record in this case and the public defender did all that he could do when it is considered what he had to work with. It was not the fault of the public defender that appellant so conducted himself in the first instance that two policemen witnessed him in a course of conduct which plainly violated the statute in question. The fact of conviction is not a sufficient basis for deeming counsel inadequate. People v. Hartridge, 134 Cal.App.2d 659, 667, 286 P.2d 72. The appellant was well and ably represented in the trial court.
The appellant never requested, pursuant to the Rules on Appeal, that he be furnished with the arguments of the District Attorney and the instructions of the trial court to the jury. Appellant has not pointed out to this Court wherein there was any error in the instructions or in the argument to the jury. It is the duty of appellant to bring an adequate record to this Court. People v. Von Brimer, 174 Cal.App.2d 569, 576, 344 P.2d 916; People v. Marsh, 170 Cal.App.2d 284, 288, 338 P.2d 495; People v. Mike, 163 Cal.App.2d 466, 469, 329 P.2d 519.
The record before us shows that the appellant was given every protection which the law affords, that he was fairly tried and convicted upon evidence which appears to sustain the verdict.
The attempted appeal from the sentance is dismissed.
The order denying the motion for a new trial and the judgment are and each is affirmed.
FOURT, Justice.
WOOD, P. J., and LILLIE, J., concur.
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Docket No: Cr. 6867.
Decided: July 05, 1960
Court: District Court of Appeal, Second District, Division 1, California.
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