People v. Gutierrez

[729]

SHINN, P. J.

Federico Gutierrez, Jr., was charged by information with possessing heroin. It was also alleged that he had suffered a prior felony conviction for a violation of Penal Code, section 273-d. Gutierrez pleaded not guilty and denied the prior conviction. In a court trial, he was found guilty of possessing heroin and although no evidence was introduced as to the alleged prior conviction the court found the prior to be true. Gutierrez appeals from the judgment and the denial of his motion for a new trial.

It is not contended on the appeal that the evidence was insufficient to support the conviction. Gutierrez did not testify. His contentions are that the court should have ordered disclosure by the arresting officer of the sources of confidential information relied upon to establish probable cause for his arrest and that the heroin was obtained as the result of an unlawful search and seizure.

The evidence consisted of that received at the preliminary hearing and additional evidence introduced at the trial. Officer Fesler testified that he received information from a reliable confidential informant that a large heavy-set Mexican, approximately 35 to 40 years of age, was selling narcotics near a liquor store on Castelar Street in Los Angeles. The following week, Colwell, a police lieutenant, passed on to Fesler information received from the sheriff’s department to the effect that a large heavy-set Mexican known as Kiko was living on Hill Street between Sunset and Alpine and that Kiko always had heroin in his possession and could deliver up to seven grams without advance notice. Fesler also learned from Colwell that Kiko capped the heroin at the home of his unsuspecting sister or sister-in-law, who lived across the street, and he obtained from the lieutenant a telephone number used to facilitate narcotic purchases from Kiko.

Fesler checked the telephone number and found that it was listed to a person named Gutierrez, living at 723 North Hill Street. A search of police files revealed that “Kiko” is a nickname for Federico and that a paroled narcotics offender named Federico Gutierrez was living at 746 North Hill. On the afternoon prior to the arrest Officer Fesler drove past the latter address in a police car. Four or five men standing in front of the house scrutinized him carefully as he drove by. He returned in the evening and a similar incident occurred.