People v. Silberstein

159 Cal.App.2d Supp. 848 (1958) THE PEOPLE, Respondent,

v.

JULIUS H. SILBERSTEIN, Appellant.

California Court of Appeals.

Mar. 20, 1958. Louis Licht and Paul P. Selvin for Appellant.

Roger Arnebergh, City Attorney (Los Angeles), Philip E. Grey, Assistant City Attorney, and William E. Doran, Deputy City Attorney, for Respondent.

Before Bishop, P. J., Swain, J., and David, J.

THE COURT.

The defendant was convicted of violating Penal Code, section 647, subsection 5. Proceedings were suspended without imposition of sentence and probation was granted. The defendant appeals "from the judgment and sentence." [1] There was no "judgment" because no sentence was pronounced, but since an order granting probation has been made appealable it has been our practice to treat a notice of appeal such as the one before us as a notice of appeal from the order granting probation and to review the proceedings at the trial in like manner as on appeal from a judgment. People v. Minter (1955), 135 Cal.App.2d 838 [287 P.2d 196].

A police officer was the only witness for the prosecution. His testimony, although in sharp conflict with that of the [159 Cal.App.2d Supp. 850] defendant, would be sufficient to sustain the judgment were it not for two errors which require a reversal. [2] The prosecution witness refreshed his memory in the courtroom, just before he took the witness stand, by reading his police report. On cross-examination of this witness, the court denied the defendant the right to inspect the report and to cross-examine the officer as to its contents. This error was prejudicial.

People v. Gallardo (1953), 41 Cal.2d 57 [257 P.2d 29] (at page 67) holds that when a prosecution witness refers to a document before taking the stand, and the defense makes a showing that the document is in the possession of the People, that it was made by the witness, and is material, and that it contains inconsistent statements, the defendant is entitled to inspect it, whether or not it is to refresh his recollection. The opinion states (p. 67): "No such showing has been made in the present case." This rule paraphrases Gordon v. United States, 344 U.S. 414 [73 S.Ct. 369, 97 L.Ed. 447]. The Gordon case significantly has been reinterpreted by its parents in Jencks v. United States (1957), 353 U.S. 657 [77 S.Ct. 1007, 1 L.Ed. 2d 1103, 1111]. Code of Civil Procedure, section 2047, reads in part: "A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury ..." Penal Code, section 1102, provides: "The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code."