PEOPLE v. ESTRADA

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District Court of Appeal, Second District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Fernando ESTRADA, Defendant and Appellant.*

Cr. 6800.

Decided: July 18, 1960

Bradford A. Arthur, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and A. Douglas MacRae, Deputy Atty. Gen., for respondent.

In an indictment defendant was accused, in two counts, of unlawfully selling heroin. He pleaded not guilty. When the case was first called for trial, the defendant's motion for a continuance for three weeks was granted. After the continuance, when the case was called for trial the indictment was amended, over objection of defendant, to allege that defendant had been convicted previously of a felony (violation of section 11500 of the Health and Safety Code). Defendant was arraigned on the amended indictment, and he admitted the allegations as to prior conviction. In a trial by jury, he was convicted on both counts. His motion for a new trial was denied. (At the hearing of the motion, the attorney who represents defendant on this appeal was substituted in place of the attorney who represented him at the trial.) His notice of appeal states that he appeals from the decision, judgment, and sentence.

Appellant contends: (1) that since he did not enter a plea as to the amended indictment, there was no ‘pleading’ upon which a verdict could be based and he was denied due process of law; (2) that, after the amendment, he was not allowed time in which to prepare for trial, and he was denied due process of law; (3) that the court erred in not requiring a prosecution witness to produce notes which he used to refresh his memory prior to testifying before the grand jury; and (4) the verdicts are not supported by the evidence.

Officer Villalba testified that on December 10, 1958, he was working as an undercover narcotics officer (not in uniform); about 10:40 a. m. of that day when he was in the 800 block of East Kensington Road, the defendant approached him and asked, ‘Are you the guy who wants to score for three grams?’; when he (witness) replied in the affirmative, the defendant said that the price was $15 a gram; the defendant gave the witness an envelope containing 30 capsules of a white powdery substance; the witness gave five ten-dollar bills to defendant, and the defendant gave him a five-dollar bill; the defendant wrote a telephone number on a page of a magazine and gave the page to the witness; the defendant said that his nickname was ‘Mono.’ The officer testified further that on December 17, 1958, he called the telephone number which defendant had given to him, and he asked the person who answered if he was ‘Mono’; the person replied in the affirmative; the witness said that he had been there before and he wanted to buy two grams of narcotics, and that he would go to the 800 block and meet him (Mono); then, about 11 a. m., the witness drove to that block and parked the automobile; at that place, he observed the defendant talking to two persons who were in an automobile; defendant approached the witness, who said that he was the man who wanted two grams; defendant told him to wait a few minutes—that he was going to take the two persons to the bus; a few minutes later defendant returned and approached the witness, who said again that he wanted two grams; defendant said that he would sell two grams for $17 a gram; defendant left, and after a few minutes he returned and gave the witness 20 capsules which were wrapped in paper; the witness gave him $35, and defendant gave him $1; defendant said that if the witness would buy bigger quantities the price would be cheaper; the next time he (witness) saw the defendant was approximately February 21, 1959, at the police station, after the witness had testified before the grand jury; at that time defendant was under arrest. On cross-examination, the witness said that prior to taking the witness stand in this case he had refreshed his recollection by looking at the transcript of his testimony which he gave as a witness before the grand jury; prior to testifying before the grand jury he used notes to refresh his recollection; those notes were typed by the secretary at the narcotics division; he did not have the notes with him while testifying herein. Defendant then made a motion that the witness be required to produce the notes he used prior to testifying before the grand jury. The motion was denied.

The capsules which the witness bought from defendant contained heroin.

Defendant testified that he did not sell any narcotic to Officer Villalba or to anyone at any time; in December, 1958, he was employed as a painter at a cabinet company and he worked from 4 a. m. to approximately 1:30 p. m.; frequently in afternoons during November and December, 1958, he had seen Officer Villalba in a billiard hall; he (defendant) had never been known as ‘Mono’; that is the nickname of his brother Pedro Rodriguez; in December, 1958, Pedro was at defendant's house in the mornings for a period of approximately twenty days; while Pedro was there he received telephone calls; defendant did not write a telephone number on a magazine page and give the page and number to Officer Villalba; he never had a conversation with the officer concerning narcotics except at the time he was arrested; he (defendant) did not remember where he was in the mornings of December 10 and 17, 1958.

Appellant contends that since he did not enter a plea to the amended indictment there was no pleading upon which a verdict could be based and he was denied due process of law. As above stated, when the case was called for trial (after a continuance of three weeks had been granted upon request of appellant) the indictment was amended (in the absence of the jury) to allege that appellant had been convicted previously of a felony. Thereupon, the deputy district attorney told the appellant (who was represented by counsel) that under the amended indictment he was charged with violation of section 11500 of the Health and Safety Code, a felony, and that he was also charged with having been convicted theretofore, on October 31, 1951, in Los Angeles County, of violating said section of said code. The deputy asked appellant if he admitted or denied the alleged prior conviction. Counsel for appellant said that ‘at this time’ we will deny it. The judge said that he would have to inform the jury that there would be two counts and ‘a prior’ to be tried. Then the judge stated further: ‘Why don't you, Mr. Coan [counsel for appellant] sit over there or go out in the hall for a minute and talk to him for a while?’ Then counsel for appellant said: ‘If I understand it correctly, then if we deny the prior then there will be evidence introduced at the trial.’ The judge said: ‘There is the evidence.’ Counsel for appellant said that he would admit the prior. The deputy district attorney stated again that appellant had been charged with said prior conviction; and he asked appellant if the allegation was true. The appellant replied in the affirmative. On this appeal, appellant argues that he was given ‘just one minute to enter a plea to the amended indictment,’ and that he was thereby deprived of due process of law ‘when placed on trial on an amended indictment to which no plea was entered on the main charges of felony.’

Section 969a of the Penal Code provides: ‘Whenever it shall be discovered that a pending indictment * * * does not charge all prior felonies of which the defendant has been convicted * * * said indictment * * * shall be forthwith amended to charge such prior conviction or convictions * * *. Defendant shall promptly be rearraigned on such * * * indictment as amended and be required to plead thereto.’ It does appear that, after the amendment was made so that the prior conviction was included in the amended indictment, the appellant was not asked to plead to the charges of selling heroin as realleged in the amended indictment; and it appears that he did not plead thereto. He should have been asked to plead thereto, but his failure to enter a formal plea would not render the conviction invalid unless such failure resulted in a miscarriage of justice. See People v. Tomsky, 20 Cal.App. 672, 684–685, 130 P. 184. The allegations of the amended indictment were the same as the allegations of the original indictment, except that the amended indictment included an allegation as to a prior conviction. Appellant had entered a plea of not guilty to the charges alleged in the original indictment. The only new question, with reference to arraignment, that was presented by the amended indictment was whether appellant admitted or denied the allegation as to prior conviction. He did not ask for a continuance in order to determine what his response would be to allegation of prior conviction. He did not request a continuance for any purpose. He asserts that the court allowed him only ‘a minute’ within which to plead to the amended indictment, and that such a short time was a violation of due process of law. When the appellant was considering what his response would be to allegation of prior conviction, the judge asked counsel for defendant (as above shown) why he did not ‘sit over there or go out in the hall for a minute and talk to him [appellant] for a while.’ Before those statements were made, the deputy district attorney said that he had the proof of prior conviction, and that he was referring to it out of the presence of the jury ‘so that counsel may have a chance to look at the prior and the basis for it.’ Thereupon, the deputy handed some documents to appellant's counsel, who examined them. It appears that the statement of the judge, wherein the expression ‘a minute’ was used, was not intended to set a precise period of one minute as the time within which appellant should admit or deny the allegation of prior conviction. The statement of the judge also included the expressions ‘go out in the hall’ and ‘talk to him a while.’ Those expressions indicate that the judge was allowing appellant a brief but adequate time within which to consider the allegation of prior conviction. As above stated, appellant did not request further time. He denied the allegation of prior conviction. Furthermore, when the judge asked if the deputy district attorney was ready in the case, the deputy said, ‘People are ready’; and the counsel for defendant said, ‘Defense is ready.’ The case was tried on the theory that a plea of not guilty had been made to the charges of selling heroin, as alleged in the amended indictment; and appellant had the benefit of such a plea as effectually as if the plea had been made formally. It is clear that there was no miscarriage of justice or denial of due process of law by reason of the failure to enter a formal plea to the charges of the amended indictment. It is also clear that there was no denial of due process of law because the judge did not allow appellant more time within which to respond to the allegation of prior conviction.

Appellant also contends that the court erred in not requiring Officer Villalba to produce notes which he used prior to testifying before the grand jury. On cross-examination, the officer testified that prior to taking the witness stand in the trial herein he had refreshed his recollection by looking at the transcript of his testimony before the grand jury; that prior to testifying before the grand jury he used notes to refresh his recollection; and that the notes were typed by the secretary at the narcotics division. He did not have the notes with him while he was testifying herein.

At the trial appellant made a motion ‘that the notes used by the police officer prior to testifying before the Grand Jury be brought in for examination.’ Appellant cites People v. Chapman, 52 Cal.2d 95, 338 P.2d 428, wherein it was held that it was prejudicial error to deny defendant's motion for production of a statement which was prepared by the police and signed by the prosecutrix. In that case counsel for defendant said that he requested that he be allowed to see the statement ‘for the purpose of impeachment.’ (Reporter's Tr., pp. 78–79.) Also, in that case, the prosecutrix had testified that she would lie or tell the truth depending on what suited her requirements at the time. The court said therein (52 Cal.2d at page 99, 338 P.2d at page 430,): ‘In these circumstances there can be no question of the importance to the defense of obtaining her statement.’ It was also said therein (52 Cal.2d at page 98, 338 P.2d at page 430): ‘The defendant in a criminal case can on a proper showing compel production of documents in the possession of the People which are relevant and material to the defense, and this rule had been applied to written statements of prosecution witnesses relating to the subject matter of their testimony where the statements were sought by the defense for purposes of impeachment.’ In the present case, appellant merely requested that the notes be brought in for examination. The circumstances herein, with respect to the credibility of the officer's testimony, were not such as to indicate the importance to the defense of obtaining the notes. There was no implication that the officer had made inconsistent statements. He testified that he had purchased the narcotics from appellant, and that there was no doubt in his mind that appellant was the person from whom he made the purchases. The trial judge herein was not required to conclude that a proper showing had been made for the production of the notes. If it be assumed that the denial of the motion for production of the notes was error, it does not appear that the error was prejudicial.

Appellant contends further that the verdicts are not supported by the evidence. The substance of the testimony has been stated hereinabove. The questions of fact were for the determination of the jury. The verdicts were supported by ample evidence.

An affirmance of the judgment carries with it an affirmance of the decision and sentence. People v. Perkins, 147 Cal.App.2d 793, 798, 305 P.2d 932.

The judgment is affirmed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.

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