SCHAUER, J., Concurring and Dissenting. — I agree that the conviction of violation of section 288 of the Penal Code should be affirmed but I must dissent from the reasoning and conclusion concerning the conviction of violation of section 207.
Defendant was represented in the trial court by a deputy public defender. That officer, presumably, was of the opinion [769]that an appeal could not reasonably be expected to result in reversal or modification of the judgment, for he did not appeal. (See Gov. Code, § 27706.)1 Defendant noticed his appeal in proprio persona and requested the District Court of Appeal to appoint counsel for him. That court (Second Appellate District, Division One) referred the matter to the Committee on Criminal Appeals of the Los Angeles Bar Association. A member of that committee examined the record (which, since defendant had not made any request for an “additional” record, did not include the instructions; see rule 33 of the Buies on Appeal) and advised the District Court of Appeal that he found no ground for appeal. The appellate court made an independent investigation of the record, determined that “it would be neither advantageous to the defendant nor helpful to [the] court to have counsel appointed,” and denied defendant’s request. The latter procedure was in accord with the decision in People v. Hyde (1958), 51 Cal.2d 152, 154 [1] [331 P.2d 42],
Defendant filed with the District Court of Appeal in proprio persona briefs in which he complained, among other things, that he had not received a transcript of the instructions. Because of defendant’s probable unfamiliarity with legal procedure he may not have known of the requirement of rule 33(b) that he request any desired “additional” record when he filed notice of appeal, or of the requirement that in subsequently seeking augmentation of the record (rule 12(a)) he should show generally what he expected the additional record to contain and how he expected to make use of it on appeal. (See People v. Parkinson (1956), 139 Cal.App.2d 500 [293 P.2d 801].) And because of his apparently limited understanding of substantive law he probably could not have complied with the latter requirement if he had known of it.
Since the record reveals that inherently substantial factual issues as to the existence of the intent necessary to constitute the crimes charged and the effect thereon, if any, of defendant’s intoxication were presented to the jury, it was important that the instructions on those subjects be correct. This was especially so because of the heinousness of- defendant’s conduct and the unappealing nature of the only defense colorably [770]available to him, i.e., claimed voluntary intoxication of an extent which would have prevented his forming the requisite intent. In the circumstances the District Court of Appeal, to make sure that defendant had been given full measure of his right to a fair and dispassionate trial, may have done as the record in the Parkinson case, supra, page 501 of 139 Cal. App.2d, shows that this same Division One, Second District, did there; i.e., examined the instructions in the superior court file.2 The record here does not disclose whether the District Court of Appeal followed this course. In affirming, it stated the correct general rule that “It is the duty of appellant to bring an adequate record to this court.” (People v. Oliver (1960, Cal.App.), 6 Cal.Rptr. 194, 197.)
We granted a hearing and appointed counsel for defendant. Counsel did not claim error in the instructions or seek augmentation of the record. This court of its own motion, however, ordered augmentation of the record and now bases a reversal on asserted prejudicial error in the instructions as to the intent necessary to constitute “simple kidnaping.” Of course I do not suggest that an appellate court should hesitate to reverse for prejudicial error merely because it was not pointed out by counsel, but I think that the error as to the intent necessary to constitute “simple kidnaping” appears, [771]not in the instructions given hy the trial judge, but only in the majority opinion of this court.
We are not confronted with a situation in which there is evidence that defendant led a child too young to be capable of consent away from danger or to its home for proper motives, and the majority’s importation into its discussion of hypothetical examples of persons who do such acts for commendable purposes confuses the issue. Defendant does not suggest that in leading the baby about he had any proper purpose or even that he acted out of drunken but innocent fondness for children. His own testimony (not set out by the majority but summarized here in the footnote) ,3 even viewed in a light most favorable to him, indicates that in originally taking the child about he acted at best, in the phrase of defendant’s counsel accepted by the majority (ante, pp.771-772), “without . . . any purpose” so far as the child was concerned. The fact that the little boy was taken without any [772]purpose seems to me to establish that he was not taken for any good purpose. The leading or carrying away of a child of two for no good purpose appears to me to constitute precisely the crime of "simple kidnaping" which the statute — and the instructions given — defined. Surely the purpose of this statute includes the protection of small children — and their parents in safely letting their children play outdoors — against just such a taking away as that shown here. According to defendant he encountered the little boy in the company of a casual acquaintance of defendant. Defendant at this time was drunk (under the influence of alcohol) and was well aware of his condition. He went with his acquaintance (assuming there was such a person), still accompanied by the infant, with the purpose of drinking more. He did continue drinking and, he claims, he remembered nothing of the events described by the prosecution witnesses.
In appraising this claim we must remember that the jury, properly instructed on the subject, impliedly found that at about 5 -.15 p. m. defendant was not so intoxicated as to be unable to form the specific intent required to support a conviction of violation of section 288 of the Penal Code. (Majority opinion, ante, p. 764.) The majority do not suggest, and I cannot conceive, that on the record in this case and in view of the just mentioned implied finding, the jury, had they been differently instructed, might have further found that at about 4 p.m., when defendant (not accompanied by his "casual acquaintance") was seen leading the child down an alley, he was so intoxicated that he did not have the intent to lead the boy.
Even if the jury did find that defendant had not yet formed the intent to violate section 288 at the time he led the child down the alley (see majority opinion, ante, p. 768), in my opinion they properly convicted him of kidnaping under instructions which adequately covered any reasonable interpretation of the evidence. I think that a defendant who knowingly takes a child, too young to consent to this guidance of his direction, from the place where defendant found him, for a purpose unknown to defendant (certainly such a taking is not to benefit the child), is guilty of kidnaping4 as correetlj' defined in the instructions given (quoted in the majority [773]opinion, ante, p. 764). The gravamen of the offense is that defendant intentionally and “forcibly” (because of the child’s youth merely leading him by the hand was force) took the boy on a route which the child did not wish to follow and which was not for any reason, either real or apparent, for the benefit of the child (because of his tender years he was incapable of consenting to go with defendant).
Under the circumstances shown in evidence the jury were correctly instructed that “any specific intent or purpose, as distinguished from ordinary criminal intent,” was not an essential element of the kidnaping. Penal Code, section 22, provides that “whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act,” but it also specifies that “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.” The jurors here were told that “The intent to do the forbidden thing constitutes the criminal intent.” The “forbidden thing” was the removal of the child against his will for no proper purpose; defendant had that intent, and a nefarious purpose apart from the simple intention to take the child was not required. By the very language of section 22 the simple kidnaping of this little boy was no less criminal by reason of defendant’s intoxication.
In some of the hypothetical cases suggested by the majority it might be proper to give instructions which point out that removal of a person against his will for a proper purpose is not kidnaping, but this case is not a suitable vehicle for developing the law in that regard.
I am impelled to conclude that this is a ease which should not, and would not normally, result in a reversal of the judgment on either the 288 or the kidnaping count. I do not wish to discuss the psychology of justice but in analyzing a declared conclusion which is not substantially supported by the arguments or facts recited, the potentialities of some unrecognized influence on the decisional process cannot be ignored. In this connection the strongly asserted convictions of some of the justices as shown in the following quotations may be relevant:
1. From People v. Hyde (1958), supra, 51 Cal.2d 152, 153-154 [331 P.2d 42] : “The public defender represented defend[774]ant at the trial hut did not undertake the prosecution of his appeal. (See Gov. Code, § 27706.) Defendant requested the District Court of Appeal, Second District, Division Three, in which the appeal was pending, to appoint an attorney to represent him, claiming that he was without funds to employ counsel. That court referred the request to the Los Angeles Bar Association Committee on Criminal Appeals, which in turn referred the matter to one of its attorney members. This attorney made a written report to the court setting forth that he had examined the record and that in his opinion it disclosed no meritorious ground of appeal. The court so advised the defendant and extended his time to file a brief. Defendant prepared and filed a brief in proprio persona. The District Court of Appeal made an independent examination of the record and affirmed the judgment. [Citation.]
“The [supreme] court ordered a hearing on its own motion in this case to consider the question of the appointment of counsel on appeal for an indigent defendant who has been convicted of a crime.
“It is our opinion that appellate courts, upon application of an indigent defendant who has been convicted of a crime, should either (1) appoint an attorney to represent him on appeal or (2) make an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. This investigation should be made solely by the justices of the appellate courts. After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court.”
2. The above quoted holding apparently settled the law governing the practice by the District Court of Appeal insofar as any aspect of that practice could conceivably constitute a procedure subject to the jurisdiction of this court. However, only a little more than two years later, in People v. Brown (1960), ante, pp. 64, 69-70 [9 Cal.Rptr. 836, 357 P.2d 1072], it appears that three justices of this court joined in the following concurring opinion: “I concur in the judgment. It is my oninion, however, that the holding in People v. Hyde . . . should he expanded to require the appointment of counsel on apueal for all indigent defendants convicted of felonies.
“The question calls for resolution even though we appointed [775]counsel to represent defendant in this court. The question cannot remain in abeyance. This very case illustrates the recurring practice of the District Court of Appeal, Second District, Division Three [the case now at bench comes from Division One], of referring the question of the appointment of counsel to the local bar association committee [citation] and the consequent countervailing practice of this court to then grant a hearing, even on its own motion, whenever there has been no appointment of counsel. There would be no end to such wasteful procedure were the question deemed moot each time this court granted a hearing and appointed counsel. The question should be settled in the interest of effective appellate court administration.”
3. See also the second concurring opinion in the Brown case, beginning on page 75, ante; the dissent in People v. Gulliclt (1961), ante, p. 544 [11 Cal.Rptr. 566, 360 P.2d 62]; and People v. Vigil (1961), 189 Cal.App.2d --- [11 Cal. Rptr. 319].
If there is a “countervailing practice of this court to . . . grant a hearing, even on its own motion, whenever there has been no appointment of counsel” in the District Court of Appeal, then indeed there should be an end to such “wasteful procedure”; and in no event should the disposition of a cause here on the merits be affected by disaffection of any justice for the intra curiam procedures, as such, of the appellate courts. We are, of course, concerned that there be no denial of due process or of equal protection of the law, and that no remediable miscarriage of justice be countenanced. But our interest is in the cause on its merits; and the mere fact that the appellate court did not appoint and pay counsel to prosecute an appeal for an indigent who has been accorded every legal right that the record supports, should not actuate a transfer to this court, much less, reversal of a judgment.
For the reasons above stated, I would affirm both judgments.
McComb, J., concurred.
I recognize that on appeal the defendant is no longer presumed to be innocent. To the contrary, his guilt has been established and every presumption is in favor of the regularity of the proceedings in the trial court. I think, too, that those able justices of the District Court of Appeal who voluntarily undertake the added burden of independently researching the record for possible flaws in the judicial process as it has been applied to indigents, are to be commended for their devotion to the public interest. This devotion is so broad in scope that these justices give the skill and acumen of their seasoned experience to protecting the rights of the indigents, and at the same time to making unnecessary the expenditure of public funds which would ensue from the appointment of counsel, in eases wherein a paid attorney could accomplish nothing which would benefit the defendant, the state or the cause of justice. Those members of the Bar who (literally as amici curiae) likewise unselfishly aid the district courts in this work, are similarly to be commended.
It bears emphasis that the duty assumed by the justices and the volunteer lawyers, is an exacting and onerous one. Under the majority decision in People v. Hyde (1958), 51 Oal.Sd 152, 154 [1] [331 P.2d 42], it is, as I understand the opinion, the unspelled out but implied duty of the reviewing court (in cases wherein an indigent requests and is refused counsel) to examine the entire record (augmenting it if appropriate) to the end of reaching and manifesting a fully informed and confident conclusion that there has been neither a denial of due process nor error which is prejudicial within the compass of People v. Watson (1956), 46 Cal.2d 818, 835-836 [12] [299 P.2d 243]. Only when the record shows such exacting care is it immediately apparent to subsequently petitioned reviewing courts that the quality of justice on appeal for the indigent is of the same standard as for the opulent.
Defendant testified as follows: On the day of the crimes he was hired to distribute handbills. Between about 6 a. m. and 12:30 p. m., while ho covered his route on foot, he drank two large cans of beer (“I believe they are quarts”) and a bottle of ‘‘Thunderbird port.” Prom 12:30 until 1:45 p. m. defendant rode in his employer’s truck which went about picking up the handbill distributors; during this ride he drank another bottle of wine.
Prom 1:45 until about 3:45 he drank beer at a tavern not far from the scene of the subsequent offenses. He went to another tavern. There “I drank a few bottles of beer and I figured I was getting too drunk, and I decided I would take a walk. ... I went out the door and I met a fellow that had a child by his hand.” Defendant said that he did not know the name of this man but was casually acquainted with him; that the man “said he was baby sitting for his aunt or his sister — I don’t know quite exactly which.” (It is to be noted that the baby’s mother testified that she let the child out to play; there is no suggestion that she entrusted him to any baby sitter.) The man told defendant that “he didn’t have any money. ... I said, ‘I can buy a drink.’ I figured it would be a good investment, because there may be sometimes when he would buy me a drink.” Defendant purchased a fifth of Tokay.
“Then he [defendant’s asserted acquaintance] wanted to drink on the street. ... I told him I didn’t want to drink there because I didn’t want to go to jail. ” (The defendant was not that drunk.) Taking the child they went into a pedestrian tunnel but there were too many passersby to permit peaceful drinking. The acquaintance 1 ‘ said he knew a better place. . . . And we went to a place — it seemed to me I was really getting pretty loaded, in other words, at the time, but it seemed to be behind some buildings, and it seemed to be kind of on a hill.” (This answers the description of the vicinity in which defendant — but not his asserted acquaintance — was subsequently found flagrante delicto with the child and arrested.)
“The child sat down, and he [the acquaintance] sat down, and I sit next to the gentleman, and we started passing the bottle around. . . . [The] last thing I remember was drinking. The next thing I remember was waking up in the Central Jail. ’ ’
Section 207 of the Penal Code provides in material part that "Every person who forcibly . . . takes . . . any person in this state, and carries him . . . into another part of the same county ... is guilty of kidnaping. ’ ’