People v. Monge

SHINN, P. J.

Defendant was convicted in a jury trial of possession of heroin, in violation of section 11500 of the Health and Safety Code. He filed an application for probation which was denied and was sentenced to state prison. He appeals from the judgment.

The grounds of appeal are: (1) Insufficiency of the evidence; (2) refusal of instructions on circumstantial evidence; and (3) error in denying the application for probation.

The evidence in chief of the People consisted of the testimony of Edward Vega, a deputy sheriff of Los Angeles County, and a capsule, discovery of which was described by the witness Vega, the contents of which were identified as heroin by the People’s witness, Lacy, a chemist of the sheriff’s office. Officer Vega testified that he and Officer Grimes arrested defendant near the corner of Fourth and Bonnie Beach Streets in East Los Angeles. While parked in the neighborhood they saw defendant walking south on Bonnie Beach Street, followed him, arrested him, and ordered him to raise his hands over his head, telling him that he was under arrest.

[143]

As he raised his hands defendant dropped an object to the sidewalk. He was taken to the officers’ car nearby and thoroughly searched, without any significant discovery. Grimes went to the spot where defendant had been arrested, found an object on the ground near a fence, where Vega picked up a package containing 24 capsules wrapped in cellophane and scotch tape. These were placed in an envelope with identification written thereon. All the capsules were delivered to Lacy and all contained heroin, although but one of them was introduced in evidence. The officer testified that defendant was ordered to raise his hands while both officers were still in the police car and that the package was found in low weeds between the cement sidewalk and the fence at the point where he had seen defendant drop a package. Defendant denied that the object was his own and denied that he had dropped it. At the conclusion of the testimony of Officer Vega, the People rested. Defendant was called and testified in his own behalf. After defendant had concluded his testimony the People called Officer Harold Grimes. It is stated in the reporter’s transcript that “he testified in rebuttal.” He testified to the circumstances of the arrest, including the finding of the heroin, and his testimony corroborated that given by Officer Vega. His testimony was a part of the People’s case in chief, and in no sense rebuttal. No request was made by the People to reopen their case. No objection was made by defendant to this irregular procedure.