People v. Fisher

California Court of Appeal Oct 1, 1962 No. Crim. 3997Published

Before: Kaufman

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Holding. The court affirmed the defendant's conviction for the sale of narcotics, finding no merit in his claims regarding due process, the use of an information, the admissibility of electronic recordings, or the absence of a witness at trial.

Issues

Whether prosecution by information instead of grand jury indictment violates the federal Constitution.
Whether the admission of overheard conversations and recorded telephone calls violated the defendant's rights.
Whether the absence of an informer-participant at trial and the use of his preliminary hearing testimony violated the right to confrontation.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It has long been well established that the federal Constitution guarantees the right to grand jury indictments only to proceedings in the federal courts”

“Rosas, one of the participants in the conversation, consented to the recording. Under these circumstances, there is no invasion of privacy and no violation of the law”

“The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial.”

KAUFMAN, P. J.

This is an appeal in propria persona from a judgment rendered on a jury verdict finding the appellant, Eddie Fisher, guilty of three counts of the sale of narcotics, in violation of section 11501 of the Health and Safety Code.

On this appeal, appellant raises numerous contentions, many of which relate to the credibility of witnesses and the sufficiency of the evidence to sustain the judgment. We have examined the record and conclude that the judgment is supported by substantial evidence and that it is not necessary to discuss all of the contentions in detail. We will, therefore, concern ourselves only with contentions relating to matters of law.

Appellant contends that: (1) he was denied due process of law and deprived of his federal right to indictment by grand jury because he was prosecuted by information; (2) the court was without jurisdiction as he was not rebooked and reexamined after dismissal of the original indictment; (3) certain hearsay evidence and evidence obtained by an illegal wire tap were erroneously admitted; and (4) the absence of the informer-participant at the trial deprived him of due process of law. There is no merit in any of these contentions.

The first contention on appeal is that appellant was denied his constitutional right to be indicted by a grand jury because he was charged by an information. Appellant contends that as a result of this fatal error in the proceedings, his detention is unlawful, and the trial court was without jurisdiction. The state Constitution authorized the prosecution by way of an information instead of indictment (art. I, § 8). It has long been well established that the federal Constitution guarantees the right to grand jury indictments only to proceedings in the federal courts

(Hurtado

State of California,

110 U.S. 516 [4 S.Ct. 111, 292, 28 L.Ed. 232]), and that the proceeding by information is not a denial of a federal right

(People

Sullivan,

101 Cal.App.2d 322 [225 P.2d 645]).

Appellant next contends that he was deprived of due process of law because he was not rebooked and reexamined after the dismissal of the original indictment. The matters which form the basis of this argument are not in the record before us. We cannot consider a contention based upon matters

People v. Fisher

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KAUFMAN, P. J.

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