People v. Leiva

MOORE, P. J.

Indicted for having sold a preparation of heroin in violation of the Health and Safety Code, section

[101]

11500, appellant was convicted by a jury of such crime, and also the court found that he had suffered two prior felony convictions. The judgment decreed that he be imprisoned for the term prescribed by law. He demands a reversal on the sole ground that the indictment failed to state facts sufficient to constitute a cause of action.

He specifies that the pleading does not allege the name of the vendee who purchased the narcotic and that such omission is a fatal defect.

“A

sale,” he asserts, “must be a transaction between two or more parties.” He argues that (1) the true test of the sufficiency of an indictment is whether the record shows with accuracy to what extent he may plead a former adjudication of the facts alleged in the indictment; (2) because the indictment is thus fatally defective, the judgment is void and in violation of both the applicable statutory'provisions and of the Fourteenth Amendment; (3) the indeterminate sentence law (Pen. Code, §§ 1168, 3020, 3041) provides that the final determination of appellant’s sentence shall be determined by the Board of Prison Terms and Paroles, i. e., the Adult Authority; (4) because the cited code sections divest the superior courts of their power and confer it upon the Adult Authority in violation of article VI, section 1, of the state’s Constitution which confers the judicial power upon designated courts, they deprive a convict of his right of due process of law.

He supports his theses with quotations from numerous decisions and text writers and concludes that the judgment of his conviction is void. Notwithstanding the skill and learning displayed in the brief, filed in propria persona, appellant thereafter requested this court to appoint counsel to prosecute his appeal. An attorney

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was appointed. He made an investigation of the proceedings prior to the trial, the evidence admitted, the verdict and judgment, and advised the court that the appeal is without merit. That such advice must be approved will presently appear. The facts are simple; the judgment is valid.