Oliver

— Defendant appeals from judgments of conviction of lewd and lascivious conduct with one Roger De Vries, a 2-year-old child (Pen. Code, § 288), and kidnaping said child (Pen. Code, § 207), following jury verdicts finding him guilty of both offenses.

On November 13, 1958, about 3:30 p. m. Roger’s mother sent him to play in an alley behind their home. About that time a parking lot attendant found defendant sitting in a car on the lot and ordered him to leave. The attendant testified that defendant was “obviously drunk.” At about 4 p. m. the attendant saw defendant walking down the alley leading Roger by the hand. About 5 p. m. a lady living in the area heard a baby crying and upon investigation found defendant and Roger sitting behind a 5-foot fence. Defendant had a bottle of liquor in his hand and was seated and leaning over Roger and talking to him. So far as she could observe both appeared to be fully clothed. Defendant’s voice was “thick” and “unintelligent” and it appeared to her that defendant “was trying to soothe the baby.” She immediately called the police.

Two officers arrived about 15 minutes later. They looked over the fence and saw Roger and defendant lying beside…

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…