People v. Hernandez

• Decision Date: 22 April 1957
• Docket Number: Cr. 1140
• Citation: 150 Cal.App.2d 398,309 P.2d 969
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel C. HERNANDEZ, Defendant and Appellant.

Page 969

309 P.2d 969

150 Cal.App.2d 398

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel C. HERNANDEZ, Defendant and Appellant.

Cr. 1140.

District Court of Appeal, Fourth District, California.

April 22, 1957.

Julius J. Novack, San Bernardino, for appellant.

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

GRIFFIN, Justice.

A court trial resulted in a conviction of defendant and appellant on four counts of violation of Section 11500 of the Health and Safety Code (selling a narcotic). The sufficiency of the evidence is not questioned. The claim is that the indictment had not been found, endorsed and presented as prescribed by law, and that an unauthorized person was present before the Grand Jury during the taking of testimony, to wit, an interpreter who was not sworn as such. The point is that the court should have granted defendant's motion to set aside the indictment on the grounds noted, which motion was made just prior to trial. Appellant cites such authority as People v. Lem Deo, 132 Cal. 199, 64 P. 265; Husband v. Superior Court, 128 Cal.App. 444, 17 P.2d 764; Sec. 1884, Code Civ.Proc.; and Sec. 925, Pen.Code. Defendant has attempted to appeal from the judgment, the order denying his motion for new trial, and denying the motion to dismiss the indictment, as well as all other 'orders adverse to defendant's rights'. The attempted appeal from the order denying the motion to dsmiss and all other 'orders adverse to defendant's rights' must be dismissed as not being appealable. People v. Simmons, 119 Cal. 1, 50 P. 844; Pen.Code, secs. 1237 and 1259.

Defendant sets forth in his brief certain portions of the proceedings taken before the Grand Jury indicating that the record does not affirmatively show that an interpreter was necessary or was sworn. Of course this would not be a proper or sufficient record or showing in respect to the points raised. People v. Scott, 24 Cal.2d 774, 777, 151 P.2d 517; People v. Black, 89 Cal.App. 219, 222, 264 P. 343; Adams v. Crawford, 116 Cal. 495, 499, 48 P. 488.

In a prior proceeding before this Court under section 995 of the Penal Code, Hernandez v. Superior Court, 142 A.C.A. No. 5, Minutes page 5, Case No. 5524 (Hearing in Supreme Court denied Aug. 31, 1956, 47 A.C. No. 2, Minutes page 3) this defendant sought an order prohibiting the Superior Court from trying the matter set forth in the indictment on the same grounds he now urges and there was lodged before this court a copy of the reporter's transcript of the oral proceedings taken before the Grand Jury relating to this defendant. The petition was denied. This order became final. The reporter's transcript was returned to defendant's counsel.

In connection with this appeal, on January 24, 1957, there was, according to the minutes, 'Lodges with this court, but not filed,' by direction of the Presiding Judge, what purports to be a carbon copy of the reporter's transcript of the oral proceedings taken before the Grand Jury in respect to this defendant. Whether this is a true, full and complete copy of all of the proceedings and testimony taken before the Grand Jury is problematical. Aso, it is questionable whether the certificate of the official reporter attached was signed by him or was copied by another person. It recites that he took down in shorthand the testimony of the witnesses named therein, who testified before the Grand Jury on Wednesday, May 2, 1956, in connection with the charges made against Manuel Hernandez and John Doe 1; and that the 25 typewritten pages were a full, true and correct transcription from his shorthand notes. It appears therefrom that the foreman of the Grand Jury announced that the 'consideration' for that day was 'to determine what, if any, public offenses were committed by the following people in connection with the selling, furnishing, or giving away of narcotics', naming 19 persons. Among them appeared defendant's name. Several of the other names were Spanish. It therefore affirmatively appears that charges against other defendants were also under consideration. After testimony of a chemist, as to the nature of a certain number of articles and that they contained narcotics, the district attorney announced: 'This concludes the testimony of this witness as to any matters in connection with Manuel Hernandez'. Up to this time it does not appear that any interpreter was in the Grand Jury room. Apparently there were other witnesses examined and other testimony taken in reference to the other named persons. Whether the interpreter was sworn and used in reference to these other witnesses is not indicated. Apparently this part of the proceeding was omitted from the transcript before us. It was then announced to the foreman that the district attorney would now present the testimony of a witness in connection with any public offense possibly committed by defendant Hernandez. An Eduardo...