In Re Johnson

[394]

TRAYNOR, C. J.

In 1963 a jury found petitioner guilty of two counts of unlawfully selling heroin (Health & Saf. Code, § 11501) and the trial court imposed consecutive sentences. In this habeas corpus proceeding petitioner contends that the prosecution’s evidence at the trial established that the acts charged and adjudged as two separate sales were in fact and law parts of a single transaction constituting only one offense.

Habeas corpus is a proper remedy to review a sentence in excess of that permitted by law

(In re Ward,

64 Cal.2d 672, 675 [51 Cal.Rptr. 272, 414 P.2d 400] ;

In re Seeley,

29 Cal.2d 294 [176 P.2d 24]) and to correct the judgment so that it will impose the only punishment lawful under the undisputed facts.

(Neal

v.

State of California,

55 Cal.2d 11, 17 [9 Cal.Rptr. 607, 357 P.2d 839].)

The convictions of two sales of heroin rest on the following undisputed facts: On November 8, 1962, Billie Robertson, an undercover agent for the state narcotic enforcement bureau, arranged to meet petitioner at a bar. They met at 9 p.m. and discussed a sale of heroin to Robertson for $30 a spoon (approximately two grams). Robertson said, “I'll take a spoon . . . and if it’s good I’ll take the five spoons for $30.00 a spoon.” Petitioner said, “I’ll trust you and . . . you can try it out and then give me the bread [money], . . . If it’s no good you can bring the stuff back. ... I’ll tell you what I’ll do . . .I’ll give you another five [and] ... it will only cost you $250.00 for ten spoons.” Petitioner left to “get the stuff. ’ ’ Shortly thereafter Robertson met him and he delivered “five spoons” so that Robertson could “try it out.” Robertson took the “stuff” to other narcotics agents; they tested it and found that it was an opiate. Robertson telephoned petitioner and agreed to meet him again at 11 p.m. and pay him $150 for the five “spoons.” Petitioner asked whether Robertson wanted “the other five for another $100” and Robertson said, “Yeah man, but I don’t have the bread [money] right now. I’ll take it if you’ll trust me until tomorrow.” Petitioner agreed. At the 11 p.m. meeting Robertson gave petitioner $150 for the five “spoons” that petitioner had already delivered, and petitioner delivered five more “spoons.” The other agents, who had waited near by, then arrested petitioner. The agreed balance of $100, of course, was never paid.