People v. Diaz

• Decision Date: 13 August 1962
• Docket Number: Cr. 3888
• Citation: 24 Cal.Rptr. 367,206 Cal.App.2d 651
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Emilio DIAZ and Albert Siegel, Defendants and Appellants.

Page 367

24 Cal.Rptr. 367

206 Cal.App.2d 651

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Emilio DIAZ and Albert Siegel, Defendants and Appellants.

Cr. 3888.

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

Aug. 13, 1962.

Rehearing Denied Aug. 31, 1962.

Walter M. Oros, San Jose, for appellant Diaz.

Jerome C. Utz, Concord, for appellant Siegel.

Stanley Mosk, Atty. Gen., John S. McInerny, Albert W. Harris, Jr., Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Presiding Justice.

Defendants appeal from judgments of conviction after jury trial. Each was separately found guilty of three offenses: (1) violation of section 11500, Health and Safety Code (sale of heroin); (2) violation of section 11500 (offer to sell heroin); and (3) violation of section 182, Penal Code (conspiracy to offer to sell heroin). ¹

QUESTIONS PRESENTED.

1. Alleged abuse of discretion in denying defendants' motions to withdraw plea.

2. Alleged error in refusing to quash the indictment.

3. Alleged error in consolidating information and indictment for trial.

4. Alleged lack of speedy trial.

5. Restriction of cross-examination of witness Mantler.

6. Effect of delay in giving information concerning the informer.

7. Alleged improper cross-examination of defendant Siegel.

8. Failure to grant Diaz' motion to dismiss sale charge.

9. Alleged entrapment.

10. Alleged misconduct of district attorney.

11. Have defendants been subjected to multiple punishment?

RECORD.

In 1959 defendants were convicted of violating section 11500, Health and Safety Code (sale of heroin). On appeal, People v. Diaz (1959) 174 Cal.App.2d 799, 345 P.2d 370, we reversed the conviction because of the refusal of the prosecution to disclose information concerning the informer Tomlinson. When the cause came on for resetting new counsel were appointed, and defendants moved for leave to withdraw their pleas of not guilty for the purpose of moving to set aside the information on the ground that they were not properly advised of their right to counsel at the arraignment in the municipal court. In the meantime, an additional complaint was filed in the municipal court charging defendants with offering to sell heroin and with conspiracy to offer to sell heroin. Thereafter an indictment was returned by the grand jury charging the same offenses. This was filed in the superior court after defendants' motion to withdraw pleas had been denied. Defendants' motion to quash the indictment was denied, as was a petition for a writ of mandate directing the municipal court not to dismiss the charges there filed.

The information upon which the first trial was had, and the indictment, were consolidated for trial. Then, on arraignment on the indictment, defendants stood mute. Pleas of not guilty were entered for them. On the trial each was convicted of all three offenses.

Inasmuch as no contention is made that the evidence was insufficient to support the verdicts, only a brief summary of the facts dealing with the commission of the offenses will be given.

On April 4, 1957, at San Jose, State Narcotic Agent Mantler, in the presence of informer Tomlinson and with Deputy Sheriff Best concealed in the trunk of Mantler's car, purchased 1 ounce and 5 grams of heroin from defendants. As soon as the sale was consummated defendants together negotiated wth Mantler for further sales. After discussion of quantity and time of delivery, defendant Siegel agreed to call Mantler on Wednesday. Subsequent telephone conversations took place between Siegel and Mantler culminating in an arrangement to meet on April 13. Mantler met Diaz and Siegel and defendants agreed to deliver Mantler 2 ounces of heroin for $800. Diaz suggested that Mantler take more on consignment. Siegel suggested that Mantler in his car lead them to a safe place for completing the deal. Mantler drover to Burlingame, followed by defendants in another car. There Mantler and other officers arrested defendants. In the car of the latter a total of 2612 grains of heroin were found.

At the trial, Diaz did not testify. He offered the depositions of two used car salesmen to the effect that he was in Los Angeles on April 4 and 5.

Siegel testified, admitting being present on the above mentioned occasions but denied knowing anything about the heroin or that Diaz was with him on April 4. He admitted phoning Mantler but only to 'spoof him along.'

1. NO ABUSE OF DISCRETION.

After the return of the remittitur on the prior appeal, defendants moved to withdraw their pleas of not guilty so that they might make a motion under section 995, Penal Code, to dismiss the information on the ground specified in that section 'That before the filing thereof the defendant had not been legally committed by a magistrate' in that on their arraignment in the municipal court, the magistrate did not properly inform them of their rights to counsel. ²

Failure of the committing magistrate to inform a defendant of his right to counsel justifies an attack on the information under section 995 on the ground that the defendant "had not been legally committed * * *" (People v. Malowitz (1933) 133 Cal.App. 250, 255, 24 P.2d 177.)

The law is well settled that a motion under section 995 to set aside an indictment or information 'must be made in the court in which the accused is arraigned before demurrer or plea and that a failure to so move at the time constitutes a waiver of any future objections.' (People v. Egan (1946) 73 Cal.App.2d 894, 897, 167 P.2d 766, 768; People v. Brown (1946) 72 Cal.App.2d 717, 719, 165 P.2d 707; People v. Ahern (1952) 113 Cal.App.2d 746, 750, 249 P.2d 63; In re Tedford (1948) 31 Cal.2d 693, 694, 192 P.2d 3.)

However, a court, in spite of such waiver, may allow a defendant to withdraw his plea of not guilty and allow him to make the motion under section 995 which he should have made theretofore. In effect the court is allowing such defendant to withdraw his waiver. However, the defendant is not entitled as a matter of right to withdraw his plea.

A motion to withdraw the plea of not guilty is addressed to the sound discretion of the trial court. (People v. Lee (1860) 17 Cal. 76, 80; People v. Crowder (1945) 69 Cal.App.2d 304, 310, 158 P.2d 988.)

The court did not abuse its discretion in denying defendants the opportunity of questioning the instruction given them by the committing magistrate concerning their right to counsel, primarily because they did not raise this question timely. They were represented by counsel at their first arraignment in the superior court and at the first trial in that court. At none of such times did they complain about the lack of instruction given them by the committing magistrate. Likewise they made no contention concerning the matter on the prior appeal.

In People v. Harding (1953) 116 Cal.App.2d 65, 66, 252 P.2d 1007, 1008, the court said concerning the defendant's claim in an application for a writ of error coram nobis that he was not informed of his right to counsel at the preliminary hearing. 'If any deficiency existed, the matter could have been raised by moving to set aside the information or by other appropriate and timely action.' (P. 66, 252 P.2d p. 1008.)

In People v. Miller (1932) 123 Cal.App. 499, 11 P.2d 884, it was held that the trial court abused its discretion in not allowing the defendant to withdraw his plea of not guilty where the court found that the committing magistrate had not informed the defendant of his right to counsel. In holding that the defendant had not waived his right to complain of this failure to instruct him, the court said, 'The defendant made his application at the first time afforded him after he had the aid of counsel.' (P. 503, 11 P.2d p. 885.) In our case this is not true.

In People v. Crowder, supra, 69 Cal.App.2d 304, 158 P.2d 988, in holding that the trial court did not abuse its discretion in denying the defendant the right to withdraw his pleas of not guilty and not guilty by reason of insanity, on the ground that he was insane at the time he testified before the committing magistrate and was not then represented by counsel, the reviewing court pointed out, 'The motion was not presented at the first opportunity presented when counsel was first appointed to represent him.' (P. 309, 158 P.2d p. 991.)

The record of the arraignment of defendants by the committing magistrate discloses that the only instruction on the subject of the right to counsel given them was, 'At this time each of you is informed by this Court of your right to counsel, that is, a lawyer at all stages of the proceedings.' This instruction complied literally with section 858, Penal Code, which in pertinent part states merely that when a defendant is brought before the magistrate upon an arrest, 'the magistrate must immediately inform him * * * of his right to the aid of counsel in every stage of the proceedings.' However, section 859 provides that the magistrate 'shall immediately * * * inform him of his right to the aid of counsel, ask him if he desires the aid of counsel, and allow him a reasonable time to send for counsel * * *. If the defendant desires and is unable to employ counsel, the court must assign counsel to defend him.' (Emphasis added.) Section 987 contains similar language. The instruction given defendants by the magistrate obviously did not comply with these sections. Under the sections it is the duty of the magistrate to initiate an inquiry into the desire of a defendant to be represented by counsel, to inquire into his ability to procure counsel, and in the event of his inability so to do, to assign competent counsel to conduct his defense. (See Bute v. Illinois, 333 U.S. 640, 674, 68 S.Ct. 763, 92 L.Ed. 986.) Had defendants moved under section 955 to dismiss the information the failure of the magistrate to fully instruct defendants would have required the dismissal of the information. But in view of the failure of the...