People v. Garcia

SHINN, P. J.

Jose Garcia, indicted for the sale of heroin in violation of section 11501, Health and Safety Code, was brought to trial without a jury, November 21, 1963. It appears from the clerk’s transcript, which is the only record of that trial, that it was stipulated that one Massar was a qualified chemist and that it was deemed he had testified for the People. While this was the extent of the stipulation it may be assumed that Massar was called to prove he had analyzed a sample of heroin and it was disclosed that he had only identified a substance as marijuana. Upon motion of the district attorney and over defendant’s objection, the indictment was amended by interlineation to substitute “marijuana” and section “11531” for “heroin” and section “1150.1” of the Health and Safety Code. Defendant was arraigned on the indictment as amended, pleaded not guilty and jury trial was waived on the issue of guilt and the allegation of a prior conviction of felony. Defendant did not request a continuance; the court offered to release him on his own recognizance and the offer was refused. Defendant was found guilty of the sale of marijuana, a probation report was ordered, defendant moved for a new trial and the motion was granted. A second trial was had the following April. Defendant admitted a former conviction of the sale of heroin, was convicted by a jury of the sale of marijuana, was sentenced and took an appeal from the judgment.

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Officer Castruita testified that he made a purchase of loose marijuana from defendant in the home of defendant’s mother for which he paid $7.50. On the stand, defendant denied having had any transaction in marijuana with Officer Castruita.

The grounds of appeal are (1) the court had no power to permit amendment of the indictment (2) defendant was subjected to double jeopardy and (3) it was error to receive evidence that after the first trial defendant had admitted to a probation officer that he had participated in the sale of three marijuana cigarettes to a narcotic officer. None of these grounds of appeal is sustainable.

The court can permit amendment of an information or indictment at any stage of the proceedings; when the pleading is amended the defendant has a right to a continuance if he asks for it, but in the absence of a continuance the trial is to proceed. (Pen. Code, § 1009.) The indictment was amended November 22, 1963; the second trial was in April 1964.