People v. Austin

JEFFERSON, J.

—A jury found defendant guilty of two sex offenses, committing lewd acts on the person of a child under 14 years of age, (Pen. Code, § 288) and attempted incest. (Pen. Code, §§664 and 285.) Following mentally disordered sex offender proceedings, he was denied probation and sentenced to consecutive prison sentences. This is an appeal from the judgment.

Defendant challenges the sufficiency of the evidence to support his conviction of attempted incest. His daughter testified that, on the evening of February 11, 1965, defendant came into the room where she and her sister slept and got into bed with her. After pulling off the bottom of her night clothes, he started moving up and down on top of her. He attempted to put his penis into her vagina but she prevented him from doing so. This went on for about 15 minutes. When she began to cry and her sister woke up, defendánt got out of bed. The victim’s sister testified she saw defendant get into bed with the victim. An investigating officer testified that, on February 16, 1965, defendant told him, after first being advised of his constitutional rights, that on several occasions he had placed his erect penis between his daughter’s legs and moved it back and forth. The above evidence is amply sufficient to support defendant’s conviction of attempted incest. His testimonial denial of any wrongdoing merely created a conflict in the evidence which was resolved against him by the trier of fact. It is well established that an appellate court may not reweigh such conflicts.

(People

v.

Newland,

15 Cal.2d 678 [104 P.2d 778].)

Defendant contends that his statement to the investigating officer was shown to be involuntary. He testified that he was coerced and threatened into making it. But the officer, and another officer who was also present, both testified that his statement was made freely and voluntarily; that no one threatened or coerced him. Here again, a conflict in the evidence arose which was resolved with the jury believing the People’s version of what took place.

[661]

It is urged that the court below erred in refusing to permit defendant to represent himself at the trial. The record does not indicate defendant asked to represent himself at the trial. Prior to- the trial, the deputy public defender who represented defendant, informed the court that defendant wanted to have him relieved and another attorney appointed to represent him. Defendant stated to the court that he had lost confidence in his counsel because that morning his counsel told him it would be best if he “would cop out to a statutory rape charge”; that the district attorney had indicated that if he did so, the People would drop the incest charge. The deputy public defender denied having made such a statement to defendant. The judge then informed defendant that he would not appoint another counsel for him, He added that, neither would he permit him to represent himself because he was not qualified to do so. The law is clear that, “Counsel appointed by the court to represent a defendant must be accepted by him in the absence of some ‘compelling reason to the contrary.’ [Citations.]”