People v. Westbrook

Opinion

KINGSLEY, Acting P. J.

Defendant was charged with, and after a trial by jury was convicted of, one count of rape, one count of robbery and one count of assault with a deadly weapon, in violation of subdivision (a) of section 245 of the Penal Code. He was sentenced to prison on all three counts, the sentences to run concurrently, with sentences on the rape and assault counts being stayed under the

Niles

formula. He has appealed; we modify and affirm.

I

The case for the prosecution was that as the victim, at about midnight, was parking her car in her garage, she was held up, robbed and raped. The defense was an alibi.

Defendant does not deny that the victim was robbed, raped and assaulted as she testified. He contends that the evidence of identity was not sufficient to support the verdict of guilt. Unquestionably, the identity evidence was weak and the alibi testimony strong. However, it was for the trier of fact, and not for us, to weigh the relative weight of the testimony.

II

The defendant was represented at the trial by a deputy public defender. Thereafter, at his arraignment for sentence, he was represented by privately retained counsel. That counsel sought, and secured, a continuance of that hearing to enable him to prepare for it but his request for a reporter’s transcript of the trial proceedings, in order to

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prepare to make a new trial motion, was denied. With the aid of a transcript, appellate counsel has made to us an argument on the sufficiency of the evidence which, although ineffective here, might have persuaded a trial court, empowered to exercise its own judgment as to weight and credibility. Counsel necessarily was handicapped in arguing evidence without such a transcript. However, as the motion was made, it quite properly was treated by the trial court as a request for a free transcript. Had the motion been accompanied by a showing that defendant could not procure a transcript at his own expense, it should have been granted.

In