People v. Hollins

Convicted of unlawful possession of narcotics (Health & Saf. Code, § 11500), with a prior conviction of a like offense found to be true, defendant appeals from

It is argued that appellant, who was tried upon an information, was deprived of his constitutional right to have an issue raised at the preliminary hearing through entry of a plea to the complaint; that the court exceeded its jurisdiction in hearing evidence without having taken a plea from defendant. Reliance is placed upon that portion of section 8, article I, of the state Constitution, which reads: “If the felony charged is not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him whether he pleads guilty or not guilty to the offense charged therein.” There is no basis in the record for this argument. There is before us only the transcript of the hearing before the magistrate and that of the trial in the superior court, which included by stipulation the transcript of the preliminary hearing. The record is silent on the subject of arraignment and hence the presumption is against appellant, whose duty it was to present a record affirmatively disclosing any error or denial of rights of which he complains. People v. Lane, 144 Cal.App.2d 87 , 90 [ 300 P.2d 321 ], is in point. It says: “Defendant, in propria persona, first contends that he is entitled to a reversal of the judgment ‘because he had no preliminary hearing on the charge for which he was sent to prison.’ The record does not bear out this contention and in the absence of proof to the contrary, it must be presumed on appeal that the proceedings in the court below were proper and in accordance with the law and that the court was acting in the lawful exercise of its jurisdiction.” Also declaring and applying that presumption are People v. Hinshaw, 194 Cal. 1 , 10 [ 227 P. 156 ]; People v. Jackson, 138 Cal. 462 , 463 [ 71 P. 566 ]; People v. Denne, 141 Cal.App.2d 499 , 514 [ 297 P.2d 451 ]; People v. Goldberg, 152 Cal.App.2d 562 , 576 [ 314 P.2d 151 ].

Section 995, Penal Code, provides that an information must be set aside upon motion of defendant upon a showing that “before the filing thereof the defendant had not been legally committed by a magistrate.” Appellant claims that that is the situation here, but the record discloses no such motion made by him. Section 996, Penal Code, says: “If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section.” Such waiver

Next it is argued that section 4% of article VI of the California Constitution cannot be applied to this case in such manner as to deprive appellant of due process or equal protection of the laws as guaranteed by the federal Constitution. Granted. But there is no occasion to apply section 4% to the instant case. The alleged errors are insufficient to warrant a reversal under the law which prevailed prior to enactment of section 4%. There is no prejudicial error shown at bar. Moreover section 4% has been held not vulnerable to the attack now made by appellant. See Sampsell v. California (9th Cir.), 191 F.2d 721 , 726; People v. Cowan, 44 Cal.App.2d 155 , 159 [ 112 P.2d 62 ].

The contention that the prosecutor knowingly used perjured testimony as a means of securing appellant’s conviction is without substance. Appellant relies upon certain inconsistencies in the testimony of Police Officer Campillo who in two instances changed his testimony on cross-examination in respects which were and are inconsequential. The changes well may be considered as corrections of statements made inadvertently upon direct examination. Moreover, there is not an iota of evidence to indicate that the prosecuting officials knew that any of the assertedly perjurious evidence was false. In re Allen, 47 Cal.2d 55 , 59 [ 301 P.2d 577 ], is apposite: “But even if we were to assume, as petitioners contend, that Biersdorff did testify falsely, there has been a

Appellant says that he was “ineffectively represented by counsel of his own choice” who “failed in his duty to the court as well as the defendant to diligently per sue and timely raise the objections necessary to protect the fundamental rights of the accused.” The Supreme Court recently said, concerning the claim of inadequate representation by counsel: “But even if we concede that defendant’s attorney may not have used the best of strategy in handling the voir dire examination and in failing to challenge some of the prosecutor’s remarks, defendant still has not made that type of showing which alone would compel us to conclude that he was deprived of due process within the meaning of the constitutional guarantees. (U. S. Const., 14th Amend., §1.) The handling of the defense by counsel of the accused’s own choice will not be declared inadequate except in those rare cases where his counsel displays such a lack of diligence and competence as to reduce the trial to a ‘farce or a sham.’ (Lunce v. Overlade [7th Cir.], 244 F.2d 108 , 110; see also Taylor v. United States [9th Cir.], 238 F.2d 409 , 413-414, cert, denied, 353 U. S. 938 [ 77 S.Ct. 817 , 1 L.Ed.2d 761 ]; United States ex rel. Feeley v. Ragen [7th Cir.] 166 F.2d 976 , 980-981; Hendrickson v. Overlade [N.D. Ind.], 131 F. Supp. 561 , 562-564.) The record in this ease does not even remotely approach such a situation. Defendant’s sole defense lay in his claim that his identification by the victims was incorrect. His counsel vigorously cross-examined the prosecution’s witnesses to test their memories, and assiduously attempted to establish an alibi and to show defendant’s good character. He at most committed what in retrospect may be claimed to be mistakes in judgment by following certain strategy employed. Such mistakes, if any, do not constitute a denial

Appellant has shown no prejudicial error.

The judgment is affirmed.

Fox, P. J., and Herndon, J., concurred.