People v. Barquera

• Decision Date: 01 October 1962
• Docket Number: Cr. 7922
• Citation: 208 Cal.App.2d 104,25 Cal.Rptr. 45
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alberto BARQUERA, Jr., and Rigoberto Gomez, Defendants and Appellants.

Page 45

25 Cal.Rptr. 45

208 Cal.App.2d 104

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alberto BARQUERA, Jr., and Rigoberto Gomez, Defendants and Appellants.

Cr. 7922.

District Court of Appeal, Second District, Division 2, California.

Oct. 1, 1962.

Elinor K. Chandler, for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., George W. Kell, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Appellants were convicted of selling heroin, and of conspiracy to sell heroin in violation of section 182 of the Penal Code. They have appealed from the judgment and order denying their motion for a new trial.

Appellant Alberto Barquera, Jr., was found guilty on counts 3 and 5 of selling heroin. Appellant Rigoberto Gomez was found guilty on count 2 of the same offense. Both appellants were convicted of the conspiracy charge, count 6. ¹

Appellants do not challenge the sufficiency of the evidence except as it relates to the sufficiency of the foundation to justify the admission into evidence of each of the exhibits. In sum, the record discloses that narcotic agent Cota testified that he made five purchases of heroin from appellants or their co-defendants.

On cross-examination, Cota testified that he had made notes concerning the various transactions testified to by him. Defense counsel thereupon moved that all such notes and reports be made available to the defendants. The court ordered Cota to bring his notes into court the next morning. Upon the resumption of the trial the next day, the deputy district attorney delivered Cota's handwritten reports to defense counsel. These notes constituted 'the entirety of everything [Cota had] written regarding this case.' The court also ordered that all typewritten reports be produced. This was done. The magistrate had declined to require the production of these notes and memoranda at the time of the preliminary hearing.

Initially the defendants argue that 'because of the denial of the right to discovery, appellants were not legally committed for trial by the magistrate, thus the trial court was without jurisdiction to proceed to trial and judgment.' We find no merit in this contention. The information by which appellants were charged is not questioned; the fact that they were represented by counsel, personally arraigned and appeared before the court is not questioned; and the fact that the subject matter of the proceeding was properly within the jurisdiction of the superior court is also not questioned. The record establishes the regularity of the proceedings with respect to each of these matters. Therefore, the superior court had jurisdiction unless the magistrate disregarded substantial rights guaranteed to the defendants. (People v. Elliot, 54 Cal.2d 498, 503, 6 Cal.Rptr. 753, 354 P.2d 225.)

In this case we augmented the record on appeal to include a copy of the reporter's transcript of the preliminary hearing. This transcript reveals that Cota testified in detail to each sale. In order that a person charged with a crime may be held to answer by a committing magistrate, it is only necessary that the evidence, rationally viewed, be sufficient for it to appear that the offense charged has been committed, and that there is probable cause to believe that the defendant is guilty of that offense. (Kind v. Superior Court, 143 Cal.App.2d 100, 102, 299 P.2d 414; Calhoun v. Superior Court, 46 Cal.2d 18, 29, 291 P.2d 474; Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250.) Cota's testimony was sufficient to justify the magistrate in holding the appellants to answer. The fact that the appellants were deprived of the use of Cota's notes (which were not used by the officer during his testimony at the preliminary hearing nor prior thereto to refresh his recollection) does not change this conclusion. A judgment of conviction will not be set aside because of a defect in the preliminary examination unless the defendants have been deprived of some substantial right. (People v. Elliot, supra, 54 Cal.2d 498, 503, 6 Cal.Rptr. 753, 354 P.2d 225; People v. Tarbox, 115 Cal. 57, 60, 46 P. 896; People v. Sehorn, 116 Cal. 503, 505, 48 P. 495.) Cota's notes could serve no purpose other than that of impeachment. After having been furnished all of Cota's notes and memoranda at the trial, appellants offer no suggestion that had they had these notes and memoranda at the preliminary and used the material therein for cross-examination, the magistrate would not have been justified in holding them to answer. The material was obviously of little or no value--for with it available at the trial, appellants were nevertheless found guilty beyond a reasonable doubt. We cannot, therefore, say that they were deprived of any substantial right that resulted in prejudice to their case by not having Cota's notes and memoranda made available at the preliminary hearing. The statement of the Supreme Court in Mitchell v. Superior Court, 50 Cal.2d 827, at p. 830, 330 P.2d 48 at p. 50, is here apposite. 'Since there was competent evidence to justify...