People v. Almarez

McMURRAY, J. pro tem.

*

This is an appeal from a judgment of conviction for violation of section 11500 of the Health and Safety Code. The appellant was convicted, after waiving jury trial and submitting the matter on the transcript of the preliminary hearing, with each side reserving the right to offer additional evidence.

After the court had read the transcript of the preliminary hearing, the People rested and appellant testified on his own behalf. The appellant was then found guilty as charged. The appeal here pretends to be from the judgment of conviction and from the order denying a motion for a new trial, but since no such motion appears to have been made, there can be no appeal based upon its denial.

Appellant, on February 11,1960, was accosted by Sergeants Natividad and Sana of the Los Angeles Sheriff’s Office, at which time Sergeant Natividad, when about three or four feet from the appellant and two other men, one of whom was sitting in the driver’s seat of a parked car, showed his sheriff’s badge and identified himself by rank and name as being of the sheriff’s department.

Appellant immediately placed a piece of paper in his mouth, lowered his head, turned his back toward Sergeant Natividad and took three or four very fast steps away from him. The sergeant grabbed appellant by the shoulder and turned him around, whereupon appellant struck the sergeant twice, the blows landing on his neck and chest.

Sergeant Sana joined the fray; the struggle ensued. All three men fell to the ground. The piece of paper fell out of appellant’s mouth, two gelatin capsules rolled out of the paper into the street and appellant grabbed one of the capsules in his clenched fist. Natividad told appellant in Spanish to open his fist, and when he did not so do, Natividad pounded appellant’s fist three or four times until it opened and then picked up the paper and the gelatin capsules. The other two men had fled during this scuffle.

Later appellant told another deputy sheriff that he usually bought “the stuff” downtown from a person and paid $2.00 a capsule. It was established that the capsules contained heroin.

Appellant’s version of the arrest is somewhat different. He

[382]