People v. Baker

WOOD (Parker), J.

Defendant Baker and one Gonzales and one Penalver were charged with unlawfully selling heroin. Baker and Gonzales admitted allegations of the information that they had been convicted of being addicted to the unlawful use of narcotics, a misdemeanor. Penalver pleaded guilty. In a jury trial, Baker and Gonzales were found guilty. Baker appeals from the sentence and judgment.

Appellant contends that there was prejudicial misconduct on the part of the deputy district attorney; that the judge erred in rulings regarding admissibility of evidence; and that the evidence was insufficient.

On August 6, 1955, from noon until 1 p. m., deputy sheriffs Natividad and Sperry, who were in a room in the Burlington Hotel in Los Angeles, observed Baker, Gonzales and Penalver who were at the Alan Hotel across the street from the Burlington. About noon the officers saw Baker standing outside the Alan Hotel, where Baker met a man. About 15 minutes later, Officer Natividad saw another man hand something to Baker. Then the officer saw Baker enter the Alan Hotel, return within a few minutes, and touch the man’s hand. A few minutes later, Officer Natividad saw a third man touch Baker’s hand. Then the officer saw Baker enter the hotel, return within a few minutes, and touch the third man’s hand. The officer also saw Penalver meet Baker outside the hotel. Baker then entered the lobby of the hotel and sat in a chair next to a chair where Gonzales was sitting. Officer Natividad, after marking the serial number of a $10 bill (his own bill) on a match book cover, went across the street and talked to Penalver who was in front of the Alan Hotel. Then the officer and Penalver went, into a café (near the hotel) and approached Baker and Gonzales who were sitting, side by side, at the counter. Officer Natividad testified further, as follows: Penalver told Baker that Natividad (officer) wanted to purchase three capsules of heroin for $9.00; Baker asked Penalver if Natividad was all right; Penalver replied that he was all right; Baker said, “Give me the money”; Penalver handed the marked $10 bill to Baker, who returned $1.00 in change; Baker told Gonzales to go upstairs and get three “caps”; then Gonzales left the café; Baker told the officer to wait outside; Penalver and the officer went outside, and approximately two minutes there

[321]

after Gonzales came from the Alan Hotel and entered the café; Penalver and the officer followed him into the café; Gonzales handed a piece of rubber balloon to Penalver; the officer, in the presence of Baker and Gonzales, extended his hand and asked Penalver to give him (officer) the eaps; Penalver handed the piece of balloon to the officer and stated: “There are three caps inside, next time you trust me”; the officer then returned to the Burlington Hotel and had a conversation with Officer Sperry; both officers then crossed the street and arrested Penalver, who was near the café; while Officer Sperry remained with Penalver, Officer Natividad went into the lobby of the Alan Hotel, where Baker and Gonzales were sitting, and arrested them; the officer took them to the place where Officer Sperry and Penalver were; Officer Natividad searched Baker and found $78 or $178 on his person; the officer compared a $10 bill, which was found in the search, with the number he had made on the match book cover; the number on the bill and the number on the cover were the same.