People v. Pierce

FORD, J.

The appellant was found guilty of the crime of grand theft. (Pen. Code, § 487.) In the count upon which

[527]

he was convicted he was accused of the theft of money belonging to named persons. There was evidence that he had failed to turn over to them the proceeds of the sale by him of their automobile and that he had used the money for his own purposes. His appeal is from the judgment and from the order denying his motion for a new trial.

The sole contention made in the brief filed on behalf of the appellant is that his conviction cannot stand because section 868 of the Penal Code was violated at the preliminary examination in that the court declined to exclude from the hearing the investigating officer, James E. Gibbons, an investigator in the office of the district attorney.

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(See

People

v.

Prizant,

186 Cal.App.2d 542 [9 Cal.Rptr. 282].) However, Mr. Gibbons was also the person who signed the complaint. Therefore, under the reasoning of the court in

People

v.

McCain,

200 Cal.App.2d 825 [19 Cal.Rptr. 550], at pages 826-828, there is no merit in the appellant’s contention.

The present attorneys for the appellant were substituted for the attorney who tried the case and who prepared the only brief filed on behalf of the appellant. At the oral argument the new counsel raised a contention not mentioned in the appellant’s brief. While not required to consider a contention so presented, we have done so. Reference was made to a request by the jury, after it had commenced its deliberations, that the court reread a particular instruction. That instruction was the one numbered 231 in the revised edition of the work entitled California Jury Instructions, Criminal (CALJIC).

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