People v. Vigil

SHINN, P. J.

Albert Barreras Vigil was, by indictment, accused of two counts of selling heroin. It was alleged that he had served prison terms following a conviction of larceny of an automobile, assault with a deadly weapon, burglary, and violation of section 666, Penal Code, a felony. He was represented by a deputy public defender in a nonjury trial. He admitted the prior convictions and was convicted on both counts. Probation was denied and he was sentenced to state prison. He appealed in propria persona from the judgment. He applied to this court for appointment of counsel on the appeal; after reading the record and ascertaining that the appeal was without merit, the application was denied; after 30 days’ notice duly given to defendant, no brief has been filed.

Defendant made two sales of heroin to a police officer; he did not testify or offer any other defense. His appeal is frivolous. Joseph A. Gunn, an undercover narcotics officer of the Los Angeles Police Department, accompanied by one Bichard Sapion encountered defendant on a street in Los Angeles, at which time defendant walked up to them and after a brief conversation gave the officer five capsules which were proved to contain heroin, and was paid $10 by the officer. Ten days later the officer, in company with Mrs. Sapion, encountered the defendant in the same locality and on this occasion the officer gave defendant a $10 bill and received five capsules which contained heroin. Mr. and Mrs. Sapion were acquainted with defendant. Questioned where they could be located the officer testified that he did not know their address

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or where they could be found. After the substances received from defendant had been identified as containing heroin they were introduced in evidence without objection. No objection was made throughout the trial to the receipt of evidence.

The indictment was returned to the court April 19, I960; May 9th, defendant, being present with his counsel, pleaded not guilty and trial was set for June 30th. No objection was made to the trial date. On June 30th, on motion of defendant, trial was continued to August 25th, on which date defendant made a motion for dismissal on the ground the case had not been brought to trial within 60 days after filing of the indictment. The motion was denied. It was properly denied for the reason that the defendant, although represented by counsel, made no objection when the case was set for trial on June 30th. On that date the trial was continued to August 25th on his motion. The clerk noted in the minutes of August 25th “time waived.” Appellant waived the right to an earlier trial.