People v. Caudillo

[184]

WHITE, P. J.

In an information filed by the District Attorney of Los Angeles County, defendant was accused in two counts of violation of section 11500 of the Health and Safety Code (sale of heroin), the first alleged offense having taken place on or about February 14, 1955, and the second on or about February 17th of the same year. The information also charged that defendant had suffered a prior conviction for a violation of section 11500 of the Health and Safety Code, a misdemeanor. To each count of the information defendant pleaded not guilty and denied the alleged prior conviction. When the cause was called for trial, by stipulation it was submitted to the court on the testimony adduced at the preliminary examination' with each party reserving the right to introduce additional evidence. Following a reading of the transcript of the preliminary examination, the People rested. Defendant testified as a witness in his own behalf. He was adjudged guilty on each of the two counts. Motion for a new trial was denied and the allegation of a prior conviction was found to be untrue. Defendant was sentenced to state prison. From the judgment of conviction and from the order denying his motion for a new trial defendant prosecutes this appeal.

Concerning the factual background surrounding this prosecution, the record reflects that Frank Vacio, a Los Angeles County deputy sheriff assigned to the narcotics detail, saw defendant on February 14,. 1955, at approximately 1:45 p. m. at 725 South Bernal. At that time Mr. Vacio asked defendant if the latter had any narcotics. He stated that he did not, but he knew where he might get some and asked if Vacio would drive him there. Mr. Vacio said he would and defendant took him to several locations in East Los Angeles.

After several phone calls, defendant instructed the deputy sheriff to drive to the corner of Wabash and Evergreen Avenues. Defendant then asked Mr. Vacio for $15 for half a gram, which he received. Caudillo then left the vehicle and returned approximately three or four minutes later. Then Mr. Vacio drove the defendant back to the latter’s home. He asked Mr. Vacio if he wanted to “fix” there. The officer refused and defendant gave him four gelatin capsules containing a whitish powder and said, “Well, I’m going to keep one of the caps for myself.” Mr. Vacio then left. The latter also saw defendant on February 17, 1955, at 725 South Bernal Street. Defendant asked him if he • wanted to “connect” again and Mr. Vacio replied, “Yes.” Again they went to several locations and made a phone call before