People v. Lopez

WOOD (Parker), J.

Defendant was accused of violating section 11500 of the Health and Safety Code in that he unlawfully sold heroin. In a trial by jury, he was convicted. He appeals from the judgment.

Appellant contends that, as a matter of law, the court

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abused its discretion “in refusing to consider” appellant’s application for probation; and that the court erred in failing to instruct the jury that evidence as to other offenses was introduced for a limited purpose.

Deputy Sheriff Natividad testified that on November 4, 1955, about 7 p. m., he approached defendant, who was in front of the El Rey Café, and asked him if he had some narcotics—that he wanted to buy three capsules for $10; defendant asked who he (officer) was and where he was from; the officer replied that he was known as “Beto” and he was from East Los Angeles; defendant asked if he (defendant) had sold narcotics to him (officer) on a previous occasion; the officer replied that he had purchased seven capsules from him about a week and a half previously; defendant said that the reason he was asking so many questions was that he (defendant) wanted to make sure whether he (officer) was an officer; then defendant said that he was not worried because he had friends in the right places and he was not afraid of being arrested; the officer said that he (officer) had $11 and some change, and he asked defendant if he would give four capsules for that money; defendant replied that he would; the officer gave defendant $11.35 or $11.40; defendant put the money in his pocket and said he would be back in about 20 minutes; then defendant went across the street and entered a 1951 Chevrolet automobile; about 20 minutes later, defendant returned in a 1936 Oldsmobile and told the officer that he had not been able to get the narcotics; defendant told him to wait a few minutes; defendant went to a nearby café and returned within a few minutes and handed a tissue paper to the officer and said there were four capsules in it.

The capsules contained heroin.

Deputy Sheriff Gutierrez testified that on said November 4 he was in a telephone booth across the street from the El Rey Café, while Deputy Natividad was in front of that café; he (witness) saw a person approach Deputy Natividad, and that person and Deputy Natividad were together for a time; then that person crossed the street, entered a Chevrolet automobile, and went away; while that person was going to the Chevrolet, Deputy Gutierrez (witness) went within 10 feet of him; that person was the defendant; about 15 minutes thereafter, defendant returned in a 1936 or 1937 Oldsmobile, alighted therefrom, and went to Deputy Natividad; he (witness) did not see anything pass from hand to hand, but it seemed as if they were shaking hands; then Deputy Natividad approached