Opinion
Hearing Granted Sept. 14, 1960.
For Opinion on Rehearing see 7 Cal.Rptr. 897.
Opinion vacated 7 Cal.Rptr. 897.
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.
WOOD, Presiding Justice.
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 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 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 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.
FOURT and LILLIE, JJ., concur.