People v. Frye

[801]

DRAPER, P. J.

Charged with burglary in entering a home with intent to commit rape (Pen. Code, §,459), and with assault with intent to commit murder (Pen. Code, § 217), defendant was found guilty by a jury of first degree, burglary and assault with a deadly weapon (Pen. Code, § 245). He was sentenced to consecutive terms.

Represented at trial by the public defender, he filed notice of appeal in propria persona. We appointed counsel to represent him. Upon receiving counsel’s report that review of the record revealed no merit in the appeal, we relieved him of his assignment. We denied appellant’s request for further appointment of counsel, but granted his requests for augmentation of the record. He filed both opening and closing briefs, and we have reviewed them, as well as the full record on appeal, in detail.

There is testimony that: The victim, a widow, was awakened in the early hours of the morning by a man holding his hand over her mouth and repeating “be quiet.” He pulled back the bedcovers. She struggled. He straddled her. As he held her left arm under one knee, he moved a knife toward her. She freed her left hand and warded off the knife thrust, suffering severe cuts which later required surgery. He struck her on the head, stunning her, and pulled down the bottom portion of her pajamas. She resumed the struggle, kicked him in the groin, got free of his hand over her mouth and screamed. He fled. She called police, who found defendant crouching behind a bush in a backyard near the victim’s home. His coat and shirt were stained with human blood. A knife was found some 6 feet from him. A relative, with whom defendant was living, testified that the knife was his, and that it had been in the basement of his home, near defendant’s room, a few hours before the crime. The victim could not identify defendant in the unlighted bedroom, but a palm print in that room was identified as his, and articles found on the floor of the room were shown to have come from the coat defendant wore when arrested.

Defendant testified that he knew the victim, had had sexual intercourse with her on other occasions, and went to her home on the night in question at her invitation, although he admitted that she was asleep when he entered. He said she had produced the knife to threaten him during a quarrel over his attentions to another woman, and that he took it away from her and left the home with it. He explained