People v. Raquel

PEEK, J.

Defendant appeals from a judgment of conviction of violation of section 288 of the Penal Code and from the order denying his motion for a new trial.

There would appear to be no reason for a detailed summary of the evidence at the trial. It is sufficient to note that an examination of the transcript discloses ample evidence to sustain the judgment. Defendant contends that the court erred in denying his motion for a new trial; that it was error for the court to permit the district attorney to interrogate him concerning prior conviction and his service of time therefor; and that he was denied the right under Welfare and Institutions Code, section 5501, to have a determination as to whether or not he was a sexual psychopath prior to judgment and sentence.

In support of his first contention he argues that certain affidavits presented to the court in support of his motion for a new trial show that a different result might have been obtained had such evidence been presented upon the trial. It is the well established rule that the conclusion of the trial court in denying a motion for new trial based upon the grounds of newly discovered evidence will not ordinarily be disturbed on appeal. This is true since the trial judge, because of his familiarity with the facts and circumstances of the entire case, is in a far better position to determine the effect and value of such evidence than is the reviewing court.

(Dry

v.

City & County of San Francisco,

83 Cal.App.2d 790 [189 P.2d 761].) Consequently such a determination by the trial court will not be reversed unless it is “. . . affirmatively shown or manifestly appears that he has abused the sound discretion confided to him.”

(Perry

v.

Fowler,

102 Cal.App.2d 808 [229 P.2d 46].) We find nothing in the record nor in the briefs of defendant that would in any way show that the trial court in the present case abused its discretion.

While the procedure followed by the district attorney in his examination of the defendant concerning prior conviction was not wholly proper, we cannot say that it was prejudicial. As stated in

People

v.