People v. Merino

FOURT, J.

This is an appeal from a judgment of conviction for violation of the provisions of section 11500 of the Health and Safety Code (possession of narcotics).

In an information filed April 10, 1956, in Los Angeles County, the defendant was charged with a violation of the provisions of section 11500, Health and Safety Code, and further, it was charged that before the commission of the offense

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charged, namely in 1950, he was convicted of the crime of robbery and served a term in the state prison therefor. The defendant pleaded not guilty and denied the prior conviction. A trial by jury was waived by the defendant, his attorney and the district attorney. By stipulation, the case of the People was submitted on the transcript of the testimony taken at the preliminary hearing and the exhibits referred to therein. The defendant did not testify in his own behalf, nor did he present any witnesses or other evidence. The defendant was found guilty as charged, and it was further found that the charge of the prior conviction was true and the defendant was thereupon sentenced to the state prison, the sentence to run concurrently with the sentence on which he was then on parole.

A résumé of the facts is as follows: Between 11:30 o ’clock a. m. and noon, on March 21, 1956, Prank Batelle, a police officer of the Los Angeles Police Department, met a “confidential informer,” whom the officer had known for 10 years and had been in direct contact with on and off for the past three or four years, when the informant was not in jail. On previous occasions the officer had received information from the informant. The informant told the officer that “he would take [Batelle] and point out a house in which a known narcotic pusher was living and also that he [the narcotic pusher] had approximately two ounces of heroin in the house at that time”; that defendant Merino worked for Armando Mendoza and that the narcotics had been brought from Tijuana two or three days before the date of the conversation, and some of which were the narcotics the defendant had in his possession at the house in question. The officer had known the defendant previously by nickname from a source other than the informant. The officer drove with the informant to a stated address, which the informant pointed out as the house where the narcotics were. The informant also told the officer that the black Oldsmobile ’98 automobile, parked in front of the house, was the car owned by the defendant. Following the pointing out of the house, the officer drove the car in which they were riding four or five blocks away and let the informant out. The officer who had been given the information, and another officer named Frias, returned at once to the house in question. Batelle entered the front door and Frias entered the side or rear door of the house. The front screen door was closed, but the wooden door was open, as was the door through which Frias entered. Upon entering,