People v. Wilburn

THE COURT.

In the Superior Court of the City and County of San Francisco defendant was charged with selling

[704]

heroin, and three prior felony convictions. He pleaded guilty to the priors and was convicted on September 20, 1960, by a jury of the sale of heroin. His motion for a new trial was denied and he was sentenced to the state prison for the term prescribed by law. He appeals from the judgment and from the order denying a new trial.

This ease is similar in

modus operandi

to

People

v.

Givens,

191 Cal.App.2d 834 [13 Cal.Rptr. 157];

People

v.

McKoy,

193 Cal.App.2d 104 [13 Cal.Rptr. 809] and

People

v.

Robison,

193 Cal.App.2d 410 [14 Cal.Rptr. 181], filed June 27, 1961. Also, the same San Francisco police officers, Officers Toomey and Higgins, and the same undercover agent, Willie Russell, are involved.

The gist of the operation is that the two officers search the undercover operator in an automobile and thus make sure that there are no narcotics on him. They then give him $20. One officer takes a position in a building where he can see two predetermined areas of two streets. The other officer uses an automobile. The officers communicate with each other by walkie-talkie. The undercover operator is always in the sight of one or the other officer. The operator is seen to contact an individual. He contacts a seller of narcotics, makes his buy, and then returns to the officer’s automobile. One of the officers then searches him to determine that the money is gone and that no narcotics other than that handed over have been obtained. This was the procedure followed in the instant ease. The undercover operator, after contacting the defendant (he entered defendant’s automobile and rode a short distance with him), returned to the officer’s automobile and turned over to him a small package which was later determined to contain heroin. Search disclosed that the money was gone and that there were no other narcotics.