People v. Rodriguez

WHITE, P. J.

In an amended information filed by the district attorney of Los Angeles County, defendant was accused of violating section 11500 of the State Health and Safety Code, in that he did unlawfully have in his possession a preparation of heroin. The amended information also charged a prior conviction of violating the aforesaid code section, a misdemeanor. Defendant pleaded not guilty and denied the prior conviction.

Trial by jury was waived and by stipulation, the case of the prosecution was submitted on the transcript of the testimony taken at the preliminary examination, both sides reserving the right to offer additional evidence, and subject to the reservation that defendant could object to the introduction into evidence of any testimony or exhibits contained in or referred to in the transcript of the preliminary hearing. Thereafter, the trial judge indicated for the record that he had read the entire transcript of the preliminary examination. The People then rested their case.

Defendant offered no evidence but interposed an objection to the introduction into evidence of People’s Exhibit 1 (a quantity of heroin found on defendant’s person). The objection was overruled and the evidence admitted. The court adjudged defendant guilty as charged and found the allegation of the prior conviction to be true. Motion for a new trial

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was denied and defendant was committed to the California Youth Authority. From the judgment of conviction and the order denying his motion for a new trial defendant prosecutes this appeal.

The facts surrounding this prosecution are not in dispute and may be thus summarized:

On the morning of May 29, 1955, between 11 a. m. and 12 o’clock noon, Officers Clarence L. Barlow and B. E. Rice of the Los Angeles Police Department were on radio car duty in the vicinity of First Street and Grand Avenue, and also between Olive and Court Streets, in the city of Los Angeles. Defendant was observed by the officers in the vicinity of Olive and Court Streets, where he was standing and looking over an excavation. Defendant started to walk toward the officers, hesitated a moment, and then proceeded in the direction of the police car. Prior to this time the officers had received no information about him. One of the officers testified that defendant “. . . became nervous and so I got out of the car and as the defendant approached us I asked him if I couldn’t talk to him for a moment. And during the conversation with the defendant I noticed that his eyes seemed to be pin-pointed and I asked the defendant if he wouldn’t sit in the police car while we carried the conversation on and he said he would.”