People v. Holmes

THE COURT.

Nathan Boyd Holmes was indicted for the sale of heroin. In a jury trial, in which he was represented by the public defender, he was convicted. He admitted a former felony narcotic conviction for which he had served a term in state prison. He made a motion for a new trial, which was denied. He appealed from the judgment in propria persona. He applied for appointment of counsel on the appeal, which was denied after we had read the record and determined that the appeal has no semblance of merit, as will hereafter appear.

Defendant has filed a brief in which he urges, as the sole ground for reversal, amendment of the indictment by substitution of his true name for “John Doe Sherlock,” as stated in the indictment. In the evidence before the grand jury the seller of the narcotics was identified as a man named Sherlock.

This is defendant’s second appeal from a conviction of the offense. Upon the former appeal defendant’s brief, from state prison, made the point that although his counsel waived trial by jury he remained mute. We reversed ((Cal.App.) 2 Cal.Rptr. 518), and the Supreme Court also reversed upon this ground (54 Cal.2d 442 [5 Cal.Rptr. 871, 353 P.2d 583]).

There was evidence of the following: About noon, Officer Burley and one Hendricks, an informer, met a girl named Dorothy Muraz who spoke with them, crossed the street and talked with defendant, who came to the officer’s car, where they discussed narcotics. The three drove away in the officer’s car, stopped at an apartment house, defendant entered the building and returned with two rubber sacks which he gave to Officer Burley in return for $20. The sacks contained a white powder which was proved at the trial to be heroin. Defendant did not testify or offer any evidence in contradiction of the testimony of Officer Burley.

Burley had heard defendant referred to as “Sherlock” and so named him in his testimony before the grand jury. After the indictment was returned the officer learned that defendant’s true name is Nathan Boyd Holmes. Pursuant to order of court the indictment was amended accordingly.

Section 953 of the Penal Code reads: “When a defendant is charged by a fictitious or erroneous name, and in

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