People v. Rivera

Opinion

GATES, J. Defendant appeals from the judgment entered following a jury trial that resulted in his conviction upon numerous counts charging grand theft and the issuance of checks without sufficient funds. (Pen. Code, §§ 487 and 476a.) In certain of these offenses the victim’s losses exceeded $25,000 and $100,000, respectively. (Pen. Code, § 12022.6, subds. (a) and (b).) He contends:

“I. The People failed to initiate action on five counts within the statutory period of limitations, thereby depriving appellant of his fundamental right to diligent prosecution. [II]. The four grand theft counts involving Alessi must be dismissed for lack of evidence and failure to follow the proper procedure. [III]. Since the prosecution failed to resort to interstate process to obtain the presence at trial of a key witness, due diligence was not sufficiently established, and the trial court accordingly erred in permitting the witness’s preliminary hearing testimony to be read at trial. [IV], The trial court abused its discretion by allowing the prosecution to introduce evidence of appellant’s debts, both personal and business, which were unconnected with the charges and whose probative value were significantly outweighed by their prejudicial effect.”

Since appellant, quite properly, does not challenge the sufficiency of the voluminous and complex evidence to support his convictions, we need not detail it here. In sum it established that appellant issued many, many checks upon overdrawn or grossly inadequate accounts as payment for his purchases of gold and jewelry items which he then sold. His defense that these transactions were but innocent, albeit unwise, attempts to salvage a failing business was rejected by the triers of fact whose resolution of such a claim is, of course, binding upon appellate review.

All the subject offenses occurred between September 24, 1979, and January 15, 1980. A complaint was filed and an arrest warrant issued on July 15, 1982, charging appellant with 18 specific instances of grand theft and check fraud. Although he was promptly arrested, his preliminary examination was not conducted until April of 1983.1 At that time he was bound [254]over to the superior court on 14 of these charges, the magistrate finding as a point of law that an inadequate showing had been made as to four others. Nonetheless, the information subsequently filed by the People realleged the four dismissed counts, i.e., counts I, II, III, and IV, and added five others, i.e., counts VII, XIV, XX, XXI, and XXII.