People v. Garcia

Decision Date07 February 1966
Docket NumberCr. 10096
Citation49 Cal.Rptr. 146,240 Cal.App.2d 9
CourtCalifornia Court of Appeals Court of Appeals
Parties, 15 A.L.R.3d 1352 The PEOPLE, Plaintiff and Respondent, v. Jose GARCIA, Defendant and Appellant.

Bradford A. Arthur, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Jose Garcia, indicted for the sale of heroin in violation of section 11501, Health and Safety Code, was brought to trial without a jury, November 21, 1963. It appears from the clerk's transcript, which is the only record of that trial, that it was stipulated that one, Massar, was a qualified chemist and that it was deemed he had testified for the People. While this was the extent of the stipulation it may be assumed that Massar was called to prove he had analyzed a sample of heroin and it was disclosed that he had only identified a substance as marijuana. Upon motion of the district attorney and over defendant's objection, the indictment was amended by interliniation to substitute 'marijuana' and section '11531' for 'heroin' and section '11501' of the Health and Safety Code. Defendant was arraigned on the indictment as amended, pleaded not guilty and jury trial was waived on the issue of guilt and the allegation of a prior conviction of felony. Defendant did not request a continuance; the court offered to release him on his own recognizance and the offer was refused. Defendant was found guilty of the sale of marijuana, a probation report was ordered, defendant moved for a new trial and the motion was granted. A second trial was had the following April. Defendant admitted a former conviction of the sale of heroin, was convicted by a jury of the sale of marijuana, was sentenced and took an appeal from the judgment.

Officer Castruita testified that he made a purchase of loose marijuana from defendant in the home of defendant's mother for which he paid $7.50. On the stand, defendant denied having had any transaction in marijuana with Officer Castruita.

The grounds of appeal are (1) the court had no power to permit amendment of the indictment (2) defendant was subjected to double jeopardy and (3) it was error to receive evidence that after the first trial defendant had admitted to a probation officer that he had participated in the sale of three marijuana cigarettes to a narcotic officer. None of these grounds of appeal is sustainable.

The court can permit amendment of an information or indictment at any stage of the proceedings; when the pleading is amended the defendant has a right to a continuance if he asks for it, but in the absence of a continuance the trial is to proceed. (§ 1009, Pen.Code.) The indictment was amended November 22, 1963; the second trial was in April 1964.

It is not contended that the amendment of the indictment was prejudicial, nor could prejudice be claimed when defendant failed to request a continuance and had ample time to prepare for a second trial. He knew from the evidence in the first trial what he would be confronted with in the second trial.

The challenge is to the jurisdiction to permit the amendment and the argument is that it charged a different offense. Although an indictment cannot be amended so as to change the offense charged (§ 1009, Pen.Code) both sections 11501 and 11531 make the sale of a narcotic a crime, and for the purpose of pleading, violation of either section is the offense charged; specification of the particular narcotic allegedly sold merely describes the manner in which the law was violated. While this is an essential of an information or indictment, an amendment which substitutes 'heroin' for 'marijuana,' (People v. Huerta, 148 Cal.App.2d 272, 306 P.2d 505), or which substitutes 'did offer to sell' for 'did sell' (People v. Shepherd, 223 Cal.App.2d 166, 35 Cal.Rptr. 497) does not charge a different offense, within the meaning of section 1009. Clearly, there is authority to amend an indictment if the proof of the defendant's acts would be the same under either pleading, as in the present case.

The contention that defendant suffered double jeopardy is unsound. The trial was for the sale of...

To continue reading

Request your trial
15 cases
  • Minnesota v. Murphy
    • United States
    • U.S. Supreme Court
    • February 22, 1984
    ...S.E.2d 5, 7 (1981). 4. Compare, e.g., United States v. Steele, 419 F.Supp. 1385, 1386-1387 (W.D.Pa.1976); People v. Garcia, 240 Cal.App.2d 9, 12-13, 49 Cal.Rptr. 146, 148 (1966); and State v. Lekas, 201 Kan. 579, 582-584, 442 P.2d 11, 15-16 (1968), with, e.g., United States v. Miller, 643 F......
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • March 6, 1968
    ...918.) 'The purpose of the interview was not to obtain a confession or damaging statements.' (People v. Garcia (1966) 240 Cal.App.2d 9, 12, 49 Cal.Rptr. 146, 148, 15 A.L.R.3d 1352.) The presentence investigation interview by a probation officer is not an 'undertaking by the police of a 'proc......
  • Bryan v. Superior Court
    • United States
    • California Supreme Court
    • July 17, 1972
    ...396, 484 P.2d 65, 68). These rules implement the beneficial purpose of the probation interview. As stated in People v. Garcia (1966) 240 Cal.App.2d 9, 13, 49 Cal.Rptr. 146, 148, quoted approvingly in Hicks, 'in order (for the probation officer) to get full cooperation from a defendant he sh......
  • In re Kenneth S.
    • United States
    • California Court of Appeals Court of Appeals
    • September 21, 2005
    ...judgment of conviction. (See Green v. United States (1957) 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; see also People v. Garcia (1966) 240 Cal.App.2d 9, 11-12, 49 Cal.Rptr. 146.) "`[B]y successfully attacking the judgment he at least subjects himself to a retrial that may reach the same res......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT