People v. Estrada

HERNDON, J.

By an information appellant was charged with possession of marijuana. Upon the trial, the court granted the People’s motion to amend the information to allege the possession of heroin. After his motion under Penal Code, section 995, had been denied, appellant entered a plea of not guilty.

A jury trial was waived and pursuant to stipulation the cause was submitted on the testimony contained in the transcript of the preliminary hearing, each side reserving the right to offer additional evidence. After the trial, at which appellant testified, he was found guilty. This appeal is from the judgment of conviction and from the order denying appellant’s motion for a new trial.

As grounds of reversal, appellant advances two contentions: (1) that the evidence is insufficient to sustain the judgment in that there is no evidence to prove that appellant possessed narcotics, and (2) that there was a material variance between the allegations of the information and the proof made at the trial.

Officer Northrup of the Los Angeles Police Department received information from an anonymous informant who stated that a person by the name of Estrada was selling nar

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cotíes at the Clifton Hotel, located at 928 West 8th Place. On November 2, 1959, Officer Northrup, and three other officers, went to the hotel referred to and observed appellant sitting in the lobby. He answered the description given by the anonymous informant.

The officers approached appellant and asked his name. He replied, “Angel Estrada” whereupon the officers explained that they had information that he was selling narcotics. Appellant stated that he knew nothing about any narcotics and when the officers asked whether they might go to his room and make a search, he replied in the affirmative, again stating that he had no knowledge of any narcotics.

Upon searching the room, the officers found two paper bindles of a white powder later identified as heroin, one of which was in a shirt pocket and the other in the pocket of a pair of pants, both of which garments were found hanging in a closet just inside the door to appellant’s room. After finding the bindles, the officers asked appellant what their contents were, and he stated that he did not know. They then asked him if it was heroin and appellant replied that he did not know what heroin looked like. While in the hotel room, the officers asked appellant if anyone else lived in the room with him and appellant answered in the negative. Appellant testified to the effect that the clothing in which the bindles of heroin were found belonged to him. Appellant’s contention that the evidence was insufficient to support the judgment of conviction is based upon the claim that there was no showing that he had any knowledge of the presence and narcotic character of the heroin found in his room.