People v. Lazzara

[664]

NOURSE, P. J.

The defendant and appellant was tried to a jury on four counts charging a violation of section 11500 of the Health and Safety Code—the sale of heroin. On a separate indictment he was tried on a charge of conspiracy to violate the same code section. He was found guilty under counts one, three and four; not guilty under count two, and guilty of the conspiracy charge. He was given concurrent sentences under counts one and three; a consecutive sentence under count four, and a consecutive sentence on the conspiracy charge. He appeals from the judgment and from the order denying a new trial. On the appeal he is now represented by counsel assigned by this court on defendant’s request. The appeal is ably presented, but counsel’s task is a hopeless one.

A brief statement of the facts is sufficient as there is no material conflict in the evidence. Three federal officers engaged one Jim Black—referred to throughout by the prosecution as the “special employee,” but identified by defendant as “Jim Black,” a former peddler or user of narcotics. The officers gave Black $500 in marked currency, then trailed him until he met defendant. Thereafter they found a quantity of heroin in Black’s possession; some of the marked currency in defendant’s possession, some in the possession of his co-conspirator, Cherrito, who pleaded guilty.

The first ground urged by appellant is that it was error to sustain the prosecution’s objections to the questions concerning the name, whereabouts, and character of the mysterious “special employee.” Even if the ruling were error it could not have been prejudicial under the special circumstances of this case since the appellant, as a witness, voluntarily disclosed that he knew this “special employee” and that his name was Jim Black.

The evidence of conspiracy was sufficient. Before the sale was consummated appellant drove the special agent twice around the block in the vicinity of Cherrito’s home, then let the agent out of the ear and drove around the block, stopping in front of Cherrito’s home. A man identified as looking like Cherrito was seen standing in his doorway. After the heroin was turned over to the special agent and the marked money given to the appellant they separated. Shortly thereafter, during the arrest of Cherrito, four $20 bills were found on Cherrito, all identified as part of the marked currency originally given by the federal officials to Jim Black and by him given to appellant. There is no good purpose in laboring the question further.