People v. Valencia

[339]

FOX, Acting P. J.

Gilbert Palacio and Charles Valencia were indicted for selling heroin (Health & Saf. Code, § 11500). Both were convicted by the court sitting without a jury. Palacio has appealed.

On February 21, 1957, Deputy Paul Gutierrez, assigned to the narcotics detail of the Los Angeles sheriff’s office, went to a barbershop operated by Valencia in Bast Los Angeles. The officer was accompanied by a confidential informant who introduced him to Valencia. The officer inquired about obtaining some narcotics. Valencia told him to return at 6 p. m. and he would have them for him. Gutierrez and the informant returned at the appointed time and the former asked for the narcotics. Valencia told him they would have to go to his hotel and “his connection would be there.” The trio went to the hotel, whereupon Valencia suggested Gutierrez and the informant wait at a small café across the street. After waiting some time, Valencia came to the café and told Gutierrez: “My connection has only six grams and he wants $120.00 for them.” Gutierrez stated he would buy them and gave him $150. Valencia went back to the hotel, returning in a few minutes with appellant, at which time a conversation took place between the parties relating to narcotics. In this conversation Gutierrez said to appellant, “I’m a little leery of letting you have the money because I have been burned for my money before,” by which he meant that someone had taken his money and given him nothing in return. Appellant replied: “That’s not the way I work. I always give something in return.” Gutierrez “then asked him if the narcotics were good. ’ ’ Appellant said, ‘ ‘ I have real good stuff. ’ ’ Thereupon, Valencia gave appellant $120 of the money Gutierrez had previously handed him. Valencia later returned the balance of the money to Gutierrez. The parties then went to the home of appellant’s mother to obtain the narcotics. Appellant suggested that Gutierrez and Valencia ride together and that he would go with the other party. When they reached their destination appellant, Valencia and the informant went into the house. Approximately five minutes later the informant, who had been searched earlier at the sheriff’s office, returned to the car and handed Gutierrez 52 capsules containing heroin.

At the trial appellant testified that he had never seen Gutierrez before, and denied having any connection with the transaction.

Appellant’s initial contention is that the evidence is