People v. Apodaca

FOX, J.

Defendant was convicted of the possession of heroin in violation of section 11500 of the Health and Safety Code. He appeals from the ensuing judgment and the order denying his motion for a new trial.

Defendant was under observation of Police Officer Poe, who was -in plain clothes, for about 45 minutes on the morning of February 21, 1953, in the area near the merry-go-round section of Lincoln Park, in the city of Los Angeles. While defendant was seated on a.park bench, Officer Poe observed three persons approach the bench at different times and have a conversation with defendant. “After the course of the eon

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versation,” which the officer could not hear, he “saw a small package exchange hands, at which time money, in the form of bills,” was' handed to the defendant. Officer Poe then observed defendant walk toward the merry-go-round entrance to the park, going on back of a wall where the cars were parked. There defendant met another person, Officer Poe' walked to the rear of the parked cars, from which position he observed defendant and the other party seated on a log, and saw the latter take some money out of his pocket. At that point an officer stepped out from behind the automobiles and up to where defendant and the other party were seated, announcing that he was a police officer sufficiently loud so that he was heard by Officer Weston, who was some 50 feet away. Defendant then got up, put his hand in his left trouser pocket and started to walk away. Officer Poe stepped up to defendant, put his hand on his shoulder, told him to stop and that he was under arrest. Defendant thereupon removed his hand from his pocket and threw a white object over his shoulder. The officer saw where the object landed. A severe struggle ensued between defendant and Officer Poe, each trying to retrieve this discarded object. Defendant grabbed it and apparently started to put it in his mouth when Officer Weston intervened. Defendant again threw the package. Officer Weston directed a man standing close by to retrieve it and bring it back to him. This the man did. The object that defendant threw was the same one that he had previously thrown over his shoulder and attempted to put into his mouth. It consisted of a latex bag containing some 12 grams of powder which was identified as heroin..

Defendant’s version was that as he was approaching his automobile in Lincoln Park someone threw a package to him, which he immediately threw away over his shoulder. Whereupon he was seized by a police officer whose identity he did not learn until handcuffs were being placed on him.