People v. De La Torre

LILLIE, J.

Salvador S. Alvarado was charged in three counts and Fred Gonzales Escandon in one with the sale of marijuana (§ 11531, Health & Saf. Code); Henry Gonzales Escandon was charged with possession of marijuana (§ 11531, Health & Saf. Code) and defendant, in count IV, with possession for sale of marijuana (§ 11530.5, Health & Saf. Code). A motion under section 995, Penal Code, was granted as to Fred Escandon. The cause was submitted on the transcript of the testimony taken at the preliminary hearing. All were found guilty as charged; defendant De La Torre appeals from the judgment.

On December 23, 1966, and January 9, 1967, State Narcotic Agent Provencio made purchases of marijuana from Alvarado. On January 19, 1967, around 7 p.m. pursuant to a prior arrangement with him, the agent met Alvarado at the corner of Anaheim and Wilmington; Alvarado entered his car and said, ‘1 have to wait for awhile as there is somebody else that is going to pick up some marijuana, and I might as well wait for him, and we will do it together.” (While objection to various statements ran to other counts none was made to this statement in count IV, thus it is part of the evidence in this case.) The agent looked up and noticed a window in an apartment building at 724 Wilmington and a person looking at

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them through the window. In five minutes pursuant to Alvarado’s directions, the agent drove to the rear of the building and parked and they entered apartment 5 at 724 Wilmington. Fred Escandon was the only occupant when they arrived. Alvarado gave the agent four brick-like packages (marijuana) in exchange for $400 and his promise to return the next day with an additional $40. At this time defendant knocked and entered the room; Alvarado introduced the agent to the defendant and indicated to him that defendant was the man he was talking about; he told him he was a very good friend. Provencio told Alvarado he would see him the next day concerning the $40 balance he owed him for one of the kilos of marijuana and left.

During the foregoing Officer Sanchez had Agent Provencio under surveillance; he saw Provencio and Alvarado meet and enter the apartment on Wilmington. He also saw defendant arrive empty handed and enter apartment 5. No one else entered the apartment during that time. He observed the agent leave the apartment around 7 :25 p.m. carrying what appeared to be a large bag and drive away; after this he received a radio communication from Provencio advising him that Tony would soon come out of the apartment with some marijuana. He waited and saw defendant leave the apartment carrying a large brown bag similar to the one carried by the agent, and enter the car; he approached defendant, identified himself as a police officer, noting what appeared to be a kilo-type objeet in the bag which defendant had placed on the passenger side, and arrested him. Officer Sanchez fully advised defendant of his constitutional rights and defendant said he understood them, then stated, “My wife don’t know about my dealing. She is going to give me hell. ’ ’