Opinion
Docket No. 8872.
November 1, 1963.
APPEAL from a judgment of the Superior Court of Santa Barbara County. John A. Westwick, Judge. Affirmed.
Prosecution for burglary and grand theft. Judgment of conviction of second degree burglary, affirmed.
John G. Barnes, Jr., under appointment by the District Court of Appeal, for Defendant and Appellant.
Stanley Mosk, Attorney General, and William E. James, Assistant Attorney General, for Plaintiff and Respondent.
Appellant, Leo Don Garcia, one of three defendants, was charged in an information filed by the District Attorney of the County of Santa Barbara with the crimes of burglary and grand theft. The defendants were duly arraigned, counsel was appointed, and following their pleas of not guilty a jury trial was had in which verdicts were returned finding the defendants guilty as charged. Appellant's motion for a new trial was denied, as was his application for probation. Appellant Garcia was sentenced to the state prison for the term prescribed by law, the crime of burglary being fixed at second degree. The grand theft counts were dismissed on motion of the District Attorney.
[1] Defendant then filed a notice of appeal and submitted for filing with this court a document purporting to be his opening brief, in propria persona, in which he raised three points, namely:
1. A conflict in evidence as to defendant Garcia's identity, namely as to whether or not he was clean shaven;
2. The uncertainty of one witness as to the make of the car involved in the commission of the burglary;
3. That he was denied "[His] legal rights as a citizen of the United States of America."
Thereafter, at defendant's request, we appointed counsel to act in his behalf. His counsel has filed with us a full statement of the facts of the case, the issues involved on appeal, his review of applicable law and his conclusion that the appeal is without merit.
The Attorney General thereupon moved to dismiss the appeal as frivolous. We denied the motion indicating that, under the circumstances here present, we preferred to consider the appeal on its merits and submitted it on the transcript of the proceedings, the file and the documents filed by counsel and defendant.
Our own examination of the record fully supports the judgment in the trial court. Any claim of defendant as to conflicts in testimony of the witnesses and uncertainty of witnesses as to any aspect of the case have been resolved by the verdict of the jury, concurred in by the trial judge on the ruling on the motion for a new trial. [2] The record also reveals that counsel, appointed at the trial level, conducted the defense in a competent manner and no claim may be made in regard to asserted denial of any fundamental rights.
The judgment is affirmed.
Burke, P.J., and Jefferson, J., concurred.