People v. Dean

• Decision Date: 20 March 1958
• Docket Number: Cr. 6078
• Citation: 322 P.2d 929,158 Cal.App.2d 572
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Weston DEAN, Defendant and Appellant.

Page 929

322 P.2d 929

158 Cal.App.2d 572

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Weston DEAN, Defendant and Appellant.

Cr. 6078.

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

March 20, 1958.

Edmund G. Brown, Atty. Gen., Carl Boronkay, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

Convicted of second degree robbery and sentenced to state prison, defendant appeals from the judgment and from the order denying his motion for a new trial. His contentions are: (1) that the trial court erred in allowing the filing of an amended information; (2) that there was no sufficient evidence of his guilt; (3) that the evidence does not support the jury's verdict that he was sane at the time the crime was committed; and (4) that the trial court erred in failing to poll the jury.

In the original information defendant was charged in one count with grand theft, a felony and, in an alternate count, with violation of section 503 of the Vehicle Code, a felony. Both counts charged the felonious taking of a certain automobile on January 30, 1957. At the time of arraignment, the public defender was appointed as counsel for defendant. Upon entry of pleas of not guilty and not guilty by reason of insanity, two doctors were appointed to examine defendant and report. The reports of these two doctors disclosing a difference of opinion, a third doctor was appointed.

At the time of trial, on motion of the district attorney, an amended information was filed charging appellant with the crime of robbery, in that on or about January 30, 1957, he did willfully, unlawfully, feloniously and by means of force and fear take from the person, possession and immediate presence of one Harold Burne, a 1953 Mercury automobile, of the value of one thousand five hundred dollars. At arraignment on the amended information, defendant entered a plea of not guilty.

In a jury trial, a verdict of guilty of second degree robbery was returned. With the court's permission, defendant thereupon entered the further plea of not guilty by reason of insanity. A trial of this issue resulted in a verdict that defendant was sane at the time the crime was committed. The judgment of conviction was entered and defendant was thereafter sentenced to state prison, the sentence to run consecutively to a sentence pronounced in another case in which probation was revoked.

No error has been shown in the order allowing the filing of the amended information. Section 739 of the Penal Code has been interpreted to authorize the district attorney to charge by information the commission of any offense disclosed by the evidence taken at the preliminary proceeding even though such offense is not specified in the order of commitment, provided the offense charged is related to the transaction which was the basis for the commitment order. Parks v. Superior Court, 38 Cal.2d 609, 611-613, 241 P.2d 521; People v. Bird, 212 Cal. 632, 636, 642-643, 300 P. 23; People v. Malowitz, 133 Cal.App. 250, 260, 24 P.2d 177.

It is entirely clear from the record before us that precisely the same transaction which was the basis for the commitment order provided the elements of the crime of which defendant was convicted. While the transcript of the preliminary proceeding has not been included in the record on this appeal, enough of the testimony given in that proceeding is quoted in the reporter's transcript to demonstrate the correctness of the court's ruling.

Defendant asserts that the committing magistrate found the evidence presented at the preliminary examination insufficient to justify holding him for robbery. Although the record does not support this assertion, we may assume its truth for the purposes of this appeal. As stated in Parks v. Superior Court, supra, 38 Cal.2d 609, 613-614, 241 P.2d 521, 524, 'the district attorney might include a related offense although the magistrate concluded impliedly or otherwise that the evidence did not show probable cause that such offense had been committed.' To the same effect is People v. Shutler, 15 Cal.App.2d 704, 709, 59 P.2d 1050. Where the record of the preliminary proceeding is not before the appellate court, it will not be presumed that the trial court erred in allowing the filing of an amended information, but on the contrary, it will be presumed that the evidence taken at the preliminary examination was such as to show the offense to have been committed as charged in the amended information. People v. Cryder, 90 Cal.App.2d 194, 200, 202 P.2d 765; People v. Shutler, supra, 15 Cal.App.2d 704, 709, 59 P.2d 1050; People v. Thal, 61 Cal.App. 48, 52, 214 P. 296.

The lack of merit in defendant's contention with respect to the sufficiency of the evidence will be demonstrated by a brief summary of the uncontradicted testimony. On the evening of January 30, 1957, Mr. Harold H. Burne, an automobile salesman, was attending his employer's used car lot at Figueroa Street in Los Angeles. At approximately 8:00 p. m. the defendant came to the lot and had a conversation with Mr. Burne regarding the automobiles on the lot. Defendant inquired about a certain 1953 Mercury automobile and asked for a demonstration. Mr. Burne said they never demonstrated at night. Defendant remained on the lot for a few minutes and just before leaving said he probably would return the next day for a demonstration. About a half hour later defendant returned. Mr. Burne was standing next to the 1953 Mercury automobile and defendant said, 'Now let's take that ride.' When Mr. Burne refused, defendant said, 'Well, you will take a ride or get a slug in your guts.' Defendant gave the appearance of having...