By an information defendant was charged with a violation of section 288 of the Penal Code and with a prior conviction for grand theft. The defendant entered a plea of not guilty to the principal charge and admitted the prior conviction. Following a verdict of guilty as charged, dеfendant moved for the appointment of psychiatrists to examine him as to his mental conditiоn and for permission to make application for probation. His motion for a new trial wаs denied, and this appeal followed. Pursuant to defendant’s request, Mr. Hoffelt was appointеd by this court to assist him on his appeal.
Defendant’s first contention is that the court erred in refusing to аllow him to conduct his own defense. The record shows that prior to trial the defendant appeared before the court on his request to subpoena witnesses. At this time he again stated, аs he had at the time of his arraignment in the superior court, that he did not desire the services of counsel. The court noted the difficulties to be expected in a *530 jury trial and appointed Mr. Mсlnnis to assist him, and the services of counsel were accepted by defendant. When the cause came on for trial Mr. Mclnnis proceeded with the examination of the jury on voir dire, following which thе defendant requested a conference in chambers at which time he again asked that hе be allowed to conduct his own defense but that Mr. Mclnnis remain in an advisory capacity. Defendant’s request was granted and the trial proceeded.
The eases cited and relied upon by defendant in support of his contention that he was not permitted to conduct his own defensе are wholly inapplicable. The record, as previously noted, shows that defendant first accepted the appointment of Mr. Mclnnis. It was not until after the jury had been selected that hе requested to be allowed to conduct his own defense with Mr. Mclnnis remaining in an advisory capаcity, which request was granted. Under such circumstances he will not now be heard to contend that he was denied his right to conduct his own defense.
It is next contended that defendant was unduly limited in his cross-examination of the prosecuting witness. On direct examination the witness had testified to certain acts committed on her person by the defendant. The apparent purpose of the questions asked on cross-examination was to show association by her with other persons and the рossibility of her engaging in like immoral acts with them. While such testimony might well have shown such acts by others, it in no way would have refuted her testimony concerning the acts of the defendant. Stated otherwise, the fact that some other person might have done exactly what defendant did, would in no way havе tended to prove that defendant did not so act.
Additionally defendant contends that the court erred in instructing the jury relative to similar acts which the prosecuting witness testified had been committed upon her person by the defendant on a prior occasion. It is his argument that, absent a mоre particular showing as to the date of the commission of the prior acts, such evidenсe must be considered as being too remote. Furthermore he contends that such was uncorroborated. Hence any instructions thereon were improper. The record shows that the evidence was admitted without objection, and therefore it must be concluded that defendant waived any objection thereto. Since the evidence was before the jury, the judge properly instructed it thereon and properly limited the jury’s consideration thereof to the disposition of the defendant toward the child
*531
and his intent at the time of the alleged offense charged.
(People
v.
LaMantain,
Defendant next contends that the prosecuting attorney, in his opening statement, committed prejudicial error by referring to the fact that defendant had telephoned his wife from the Vаllejo jail. Even'assuming that such reference in the opening statement was improper, it cаnnot be said that it was prejudicial. He admitted that he had been apprehended on the dаte in question for being drunk in a car; that he was then with a woman other than his wife; and that he had telephoned to his wife.
The final contention of defendant appears to be that from an examination of the entire record he was denied a fair and impartial trial, and hence was denied due process of law. In view of our conclusions upon the contentions made by defendant, there appears to be no basis whatever for such contention.
The judgment and order are affirmed.
Schottky, J., and Warne, J. pro tem., * concurred.
A petition for a rehearing was denied June 11, 1958, and appellant’s petition for a hearing by the Supreme Court was denied July 9, 1958.
Notes
Assigned by Chairman of Judicial Council.