People v. Allen

DOOLING, J.

Defendant was convicted by a jury of a violation of Penal Code, section 288, committed on the person of a 5-year-old girl. He appeals from the judgment and the order denying his motion for new trial.

Appellant does not question the sufficiency of the evidence nor does he claim any other error except that the trial judge erred in qualifying the 5-year-old child as a competent witness. The record shows that after certain preliminary questions by the judge he asked: “Does either side wish a

voir dire

on this?” Appellant’s counsel replied: “No questions.” The court thereupon ordered the witness to be sworn. The witness was then examined on direct and cross-examination. No objection to her competency was made at any stage of the proceedings. Under the decisions where “objection to the competency of the witness is not made in the trial court any objection to the witness’ competency will be deemed to have been waived and cannot be considered for the first time on appeal.”

(People

v.

Aleshire,

90 Cal.App.2d 506, 509 [203 P.2d 569];

People

v.

Lamb,

121 Cal.App.2d 838, 847 [264 P.2d 126].)

Appellant is represented by new counsel on this appeal who argues that it would be manifestly unfair to affirm appellant’s conviction on the testimony of an incompetent witness merely because of the failure of his attorney to make proper objection in the trial court. If an examination of the record indicated that the child was an incompetent witness we would be inclined to agree with appellant’s counsel, but we have no such record before us. An examination of the child’s testimony shows that she told a straightforward story on the witness stand. She voluntarily told her parents of the criminal incident within a few minutes after it occurred and there was no suggestion that she had been coached by her parents or anyone else in the testimony that she gave. A reading of her answers on

voir dire

and her subsequent testimony both on direct and cross indicates that she was capable of receiv