People v. Hurtado

Opinion

STEPHENS, Acting P. J.

Defendant appeals from a judgment of conviction for possession of heroin (Health & Saf. Code, § 11350) entered following a court trial on that charge.

Facts

At about 1:40 a.m. on December 13, 1975, two California Highway Patrol officers, who were stopped in their patrol car alongside the northbound lanes of the Ventura Freeway, observed a red 1966 Ford Ranchero pickup truck pass by at excessive speed, swerving erratically. The officers gave chase and caught up with the vehicle after it had exited the freeway at the California Street offramp in Ventura. After the Ranchero had been pulled over, one of the officers, who approached defendant, detected a strong odor of alcohol on his breath. Following a series of field sobriety tests, defendant was placed under arrest for drunk driving. Then, while defendant was being handcuffed, he was seen to take an object from his jacket and place it between his legs. The object—a cigarette package—was seized and found to contain 20 rolled balloons filled with a substance later determined to be heroin.

On December 29, 1975, defendant was arraigned in Ventura County Municipal Court on three counts of narcotics offenses—unlawful transportation of heroin (count I, Health & Saf. Code, § 11352), possession of heroin for sale (count II, Health & Saf. Code, § 11351), and possession of heroin (count III, Health & Saf. Code, § 11350). That same day he was charged in a separate case with drunk driving. (Veh. Code, § 23102, subd. (a).) Defendant pleaded not guilty to all charges.

On January 22, 1976, following a preliminary hearing on the narcotics charges, defendant appeared in municipal court on the drunk driving charge, withdrew his not guilty plea and entered a plea of guilty. He was then fined and placed on probation.

[636]

Four days later an information was filed as to the narcotics charges, and defendant pleaded not guilty to all counts. Subsequently, defendant made a motion to dismiss the information pursuant to Penal Code section 654. The motion was denied; however, the jury trial which began on March 23, 1976, ended in a mistrial six days later. Ultimately, on May 4, 1976, defendant and all counsel waived a trial by jury and by stipulation of the parties defendant submitted the issue of guilt as to count III only. The court then found defendant guilty of count III, and on May 26, 1976, entered a judgment of conviction.