People v. Esparza

Opinion

KAUS, P. J.

Esparza was charged with violations of section 11500 of the Health and Safety Code (count I) and section 11721 of the Health and Safety Code (count II). A motion under section 995 of the Penal Code was denied. He pleaded not guilty. A motion under section 1538.5 of the Penal Code was submitted on the transcript of the preliminary hearing, plus additional testimony. The motion was denied. Esparza then changed his plea to guilty on count I. On motion of the People, the remaining charges were dismissed. Proceedings were suspended and probation granted, contingent upon certain terms and conditions including a requirement that Esparza spend the first nine months in jail, the sentence to run concurrently with that in an unrelated case. He appeals from the judgment, as he is permitted by section 1538.5, subdivision (m) of the Penal Code. A purported appeal from an order denying a motion for a new trial must be and hereby is dismissed.

At about 9 a.m. on March 6, 1968, Officer Frigo of the Montebello Police Department received a radio call, based on a telephone complaint,

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that there was a suspicious vehicle containing two male occupants of Mexican extraction parked in front of 833 Carmelita and that the same vehicle had been in the same location at about the same time the previous day. Frigo drove to the location in his marked police vehicle and parked behind a red Chevrolet in which were two men fitting the description as far as it went. Frigo started out of his car to approach the Chevrolet. Both of its occupants looked back toward the police car, then faced forward again. The passenger door of the Chevrolet opened. Frigo observed Nunez, the driver, make an “outward” movement with his right arm from his upper chest area, then saw an object come out the open passenger door and roll onto the parkway. Esparza, who was seated in the passenger seat, left the car a second or two later, walked around the front of the Chevrolet and then back toward the police car. Frigo believed Esparza was going across the street, although he was walking in his general direction.

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ItFany event, Frigo asked Esparza where he was going. Esparza said he lived across the street and was going to reassure his sick mother that there was nothing seriously wrong. Frigo asked him for some identification. Defendant produced identification which showed he did, in fact, live across the street.