People v. Newville

• Decision Date: 17 September 1963
• Docket Number: Cr. 4265
• Citation: 220 Cal.App.2d 267,33 Cal.Rptr. 816
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles NEWVILLE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 816

33 Cal.Rptr. 816

220 Cal.App.2d 267

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles NEWVILLE, Defendant and Appellant.

Cr. 4265.

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

Sept. 17, 1963.

Rehearing Denied Oct. 1, 1963.

Hearing Denied Nov. 13, 1963.

Katherine L. Dealey, San Jose, under appointment of the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., of the State of California, Albert W. Harris, Jr., Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Justice.

Defendant appeals from a judgment of conviction of three violations of section 288 of the Penal Code (lewd and lascivious conduct). The first question is one of pleading.

On June 22, 1962, an information was filed charging appellant with the commission of the act denounced by section 288a of the Penal Code (oral copulation) with a boy whose first name is Donald.

On July 13, 1962, an amended information was filed which added a second count charging appellant with a violation of section 288 of the Penal Code upon the same boy. Appellant was duly arraigned and July 18, 1962 was fixed as the date for the reception of his plea to this amended information.

On July 17, 1962, the Grand Jury returned an indictment charging appellant with two violations of section 288 of the Penal Code, count one involving a boy named Ronald, and count two involving a boy named Coleman.

On July 18, 1962, appellant was arraigned upon the indictment. Thereafter, but on the same date, the minutes state that the following occurred: 'The District Attorney * * * now presents an amended information and indictment charging Defendant with the offense of a violation of Sections 288a and 288 of the Penal Code of the State of California on the amended information and two counts of a violation of Section 288 of the Penal Code of the State of California on the indictment. Upon order of Court the Clerk files the amended information and indictment in Court.' The appellant was thereupon arraigned on this 'Indictment and Amended Information' and July 25, 1962, was fixed as the date for the reception of his plea thereto.

Respondent does not offer any explanation as to why the indictment and the amended information were consolidated into one pleading. The latter contains the identical language of the two accusatory pleadings which it replaces and no more. Even the titles identify the counts so as to distinguish between the indictment and the amended information. The same result would have obtained if the clerk of the court had merely stapled the indictment and the amended information together.

As appellant states, 'it should be pointed out that, on July 18, 1962, the people had an amended information filed July 13, 1962, which was properly supported by preliminary examination and filed, and that, on July 18, 1962, the people also had an indictment filed July 17, 1962, which was properly supported by a grand jury investigation and filed.'

Appellant does not question that the court has the right to consolidate two actions for trial where, as here, the two accusatory pleadings charge offenses of the same class of crimes. (E. g., People v. Bittick, 177 Cal.App.2d 479, 482, 2 Cal.Rptr. 378.) This is so even though the accusatory pleadings consist of an indictment and an information. (People v. Diaz, 206 Cal.App.2d 651, 664, 24 Cal.Rptr. 367.)

Appellant's contention is that 'there is no provision under the law of this state for a pleading, [such as an] 'Indictment and Amended Information,' as was filed in the case on July 18, 1962.' (Emphasis ours.)

Respondent relies upon section 954 of the Penal Code, which provides in part as follows: 'An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.' (Emphasis added.)

We have not been able to find any appellate court decision which considers the propriety of consolidating the pleadings in two actions being consolidated for trial. However, it would appear that sections 960 and 1404 of the Penal Code are also applicable, at least in the present situation.

Section 960 provides as follows: 'No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.' (See People v. Howes (1950), 99 Cal.App.2d 808, 816, 222 P.2d 969; People v. Leiva (1955), 134 Cal.App.2d 100, 103, 285 P.2d 46; People v. Massey (1957), 151 Cal.App.2d 623, 649, 312 P.2d 365.

Section 1404 provides as follows: 'Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.'

In his closing brief, appellant attempts to show that he was prejudiced by the consolidation of the two accusatory pleadings. He first points out that he was entitled to be tried on the charge contained in the information within sixty days after its filing. (Pen.Code, § 1382.)

When defendant refused to waive this time requirement, the court set both actions, which had been consolidated, for trial on August 15, 1962. Appellant's counsel stated that this date was satisfactory as to the trial of the charges in the amended information but that she desired more time to prepare for the trial of the charges contained in the indictment. The court nevertheless stayed with the August 15 date for the trial of both actions.

Appellant's argument seems to be that, while the sixty-day period as to the information would expire on or about August 22, 1962, such period would not expire as to the indictment until on or about September 17, 1962, and that he would have been entitled to a trial date on or shortly prior to this latter date on the charges contained in the indictment if it had not been for the consolidation.

There is nothing in the statute (Pen.Code, § 1382) that gives a defendant the right to have his trial delayed until just before the sixty-day period expires. He has a right to a speedy trial and the statute provides in effect that a trial held more than sixty days after the finding of the indictment or the filing of the information is not a speedy trial.

Here, appellant refused to waive this time provision and insisted on going to trial within the sixty-day period as to the information. Since the two actions had been consolidated for trial, it was necessary to give the same date to the trial on the indictment also.

It is true that appellant's counsel advised the court that she was 'going out on vacation next Friday' (August 3, 1962) but, other than that, there was no showing as to why she could not be ready on August 15, 1962, for trial of both actions.

It is also apparent that the same situation would have been before the court whether or not the accusatory pleadings had been consolidated. Appellant admits that the actions were properly consolidated for trial. That being so, one action could not be tried on one date and the other on another date.

The count alleging a violation of section 288a of the Penal Code was dismissed on motion of the prosecution and the case proceeded to trial on the remaining three charges on August 20, 1962. We find that appellant was not prejudiced by any of these proceedings taken prior to trial.

Motion to inspect. On August 3, 1962, appellant made a motion to inspect (1) oral statements of appellant; (2) oral statements of the three boys and their parents; (3) 'All police reports made by the Police Department of San Jose in the above-entitled matters'; and (4) the appellant's 'rap-sheet.' (Emphasis ours.)

The trial court granted appellant's motion as to all of the above items except the police reports and denied the latter on the ground that the request was too indefinite. This order is one which rests largely in the discretion of the court (People v. Terry (1962), 57 Cal.2d 538, 561, 21 Cal.Rptr. 185, 370 P.2d 985; Vetter v. Superior Court (1961), 189 Cal.App.2d 132, 134, 10 Cal.Rptr. 890) and must be based upon a proper showing. (People v. Chapman (1959), 52 Cal.2d 95, 98, 338 P.2d 428.)

In the instant case, the declarations of appellant and his counsel (which were not opposed by counter-declarations) merely state on information and belief that police reports were made and that they allegedly would be material to the defense.

Even though these declarations were not contradicted, this does not mean that the court must grant the motion. It is still discretionary. A mere desire to see all matters which might be helpful to the defense is not a sufficient cause to compel production thereof. (People v. Cooper (1960), 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964; People v. Curry (1961), 192 Cal.App.2d 664, 671, 13 Cal.Rptr. 596.) The motion as made before the lower court represented no more than such a desire.

Moreover, we think appellant has wavied his right to complain on appeal about the denial of this portion of his motion by failing to renew it if he was still dissatisfied after inspecting all of the other requested material. (See People v. Gallegos (1960), 180 Cal.App.2d 274, 277, 4 Cal.Rptr. 413; People v. Mitman (1960), 184 Cal.App.2d 685, 691, 7 Cal.Rptr. 712.)

At the hearing of the motion, the District Attorney stated: 'I am willing to give her [appellant's attorney], naturally, any of the other items as they may appear in portions of the police report, for example, if the report has part of a purported statement or purports to relate part of a statement of...