People v. Barbera

THE COURT.

A hearing was granted in this case in order to give further consideration to the points raised by appellant, Babe Otto Barbera. After a review of the record and the contentions of the appellant and respondent, we have decided to adopt the opinion of the District Court of Appeal, Second District, Division One, prepared by Justice Fourt, and concurred in by Justice Lillie (Presiding Justice White concurred in the judgment) with certain deletions, as the opinion of this court.

“There are two appeals before the court in this matter. The first case, Superior Court Number 191311, is an appeal from a judgment wherein the defendant was convicted of a violation of the provisions of section 11714, Health and Safety-Code (sale of heroin to a 16-year old child).

“The second ease is Superior Court Number 172604, and is an appeal from a judgment wherein the defendant was charged with a violation of the provisions of section 11500, Health and Safety Code (possession of marijuana).

“The defendant, in ease Number 191311, was charged in

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count I of the information with having sold heroin on April 5, 1957, to a minor of the age of 16 years. In count II of the information the defendant was charged with having possession of certain narcotics (marijuana) on May 2, 1957. It was also charged in the same information that the defendant had formerly, namely on May 10, 1955, been convicted of the crime of violation of section 11500, Health and Safety Code.

“The defendant pleaded not guilty as to both counts and denied the prior conviction. At the time of trial all parties and counsel waived a jury trial and stipulated that the cause be submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, and each side reserved the right to introduce additional evidence. The trial was continued to a day certain, and on that date witnesses were called and testified in behalf of the plaintiff and defendant.

“The court found the defendant guilty of count I and not guilty as to count II of the information, and made no finding as to the charge of a prior conviction. The defendant made an application for probation, and the matter was heard on August 6, 1957. Probation was denied in the heroin selling ease and the defendant was sentenced to the state prison and such sentence was ordered to run concurrently with the county jail sentence imposed in case Number 172604.