People v. Carballo

COUGHLIN, J.

The defendant Carballo and four other individuals, i.e., Calderilla, Bustillos, Muratalla and Abarca, were indicted for selling heroin, a violation of Health and Safety Code, section 11501, allegedly occurring on April 23, 1963. All of the persons charged, except Muratalla, were convicted. The defendant Carballo, under appropriate proceedings, was committed to the California Narcotic Rehabilitation Facility pursuant to section 6451 of the Penal Code; approximately six months later was returned from the facility under certification by the superintendent as a person not fit for confinement or treatment therein; was sentenced to imprisonment in the state prison; and appealed from the judgment of conviction. The grounds for appeal are that (1) the evidence is insufficient to support the verdict finding him guilty of the offense charged; (2) the court erred in the rejection of evidence offered by him; (3) he was not adequately

[658]

represented by counsel at the time of trial; and (4) his return to the trial court for pronouncement of judgment was improper.

Where the sufficiency of the evidence to support a verdict is attacked on appeal, that version thereof most favorable to the conclusion reached must be accepted by the appellate court.

(People

v.

Daugherty,

40 Cal.2d 876, 885 [256 P.2d 911].) The facts herein will be stated accordingly.

On April 23, 1963, an undercover narcotics agent named Nanez telephoned the defendant Calderilla, and arranged for the purchase of an ounce of heroin for $300. Pursuant to instructions from Calderilla, the sale was to be effected at an abandoned dump. Nanez and another narcotics agent, Orosco, drove to the dump; saw Calderilla and the other defendants who had arrived in a Cadillac; parked their car at a place where they could observe the occupants of the Cadillac; noted that Calderilla and Bustillos were in the Cadillac; and also noted that Carballo, appellant herein, Abarca, who had a rifle, and Muratalla were standing in back of it. Nanez, who previously had been searched by Orosco for the purpose of determining that he had no narcotics in his possession, was given $300 by the latter; left the automobile in which he had been riding; approached the Cadillac, where he contacted Calderilla; gave Calderilla the $300; and received instructions that the narcotic he was to receive in return was hidden near a pole on the side of the dump. After receiving these instructions, Nanez walked toward á pole at which time Orosco heard the men in back of the Cadillac laugh and shout: “Not that pole, the other pole.” Nanez changed his course and picked up a package at the “other pole,” which later was determined to contain heroin. Orosco identified appellant as one of the three men standing in back of the Cadillac. Subsequently, i.e., on April 26th, another purchase was made from Calderilla at the same dump in the presence of defendants Carballo and Abarca, both of whom were outside a Plymouth automobile driven by Calderilla. On the latter occasion, after Nanez had obtained the heroin he waved toward the Plymouth automobile at which time the appellant and Abarca got into that ear. Previously, i.e., on March 26th, Orosco, using Nanez as an agent, purchased heroin from Calderilla at the latter’s residence. There was testimony respecting other sales by other defendants on other occasions.