People v. Hagen

KINGSLEY, J.

Defendant was charged (count I) with possession of heroin, in violation of section 11500 of the Health and Safety Code; and (count II) with driving a motor vehicle while under the influence of heroin, in violation of section 23105 of the Vehicle Code. Two prior felony convictions were also charged. A motion under section 995 of the Penal Code was made and was granted as to count I

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but was denied as to count II. Defendant pled not guilty and denied the priors. Trial by jury was duly waived and the case was submitted on the transcript of the testimony given at the

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preliminary hearing, together with additional testimony. The court found defendant guilty of the offense charged in count II, a motion for a new trial was made and denied, probation was denied and defendant was sentenced to state prison. No disposition was made as to the priors. He has appealed both from the order denying a new trial and from the judgment. We dismiss the appeal from the order, as not being an appeal-able order, and affirm the judgment.

In June 1967, the Glendale police, in cooperation with state parole agents, were looking for defendant as a parole violator for whom a warrant of arrest was outstanding. They knew that, in 1964, defendant had lived with his parents at 731 Milford in the City of Glendale and they had been advised by a prisoner that defendant and a woman were again living there in 1967. As a result, the officers and agents had “staked out” that address. At about 9 p.m., on June 28, 1967. Officer Pfaff saw a man and a woman leave the apartment and. enter an automobile. The officer was too far away to identify the man but suspected that he might be defendant. He radioed for a patrol car to stop the auto for the purpose of seeing whether or not the driver was, in fact, defendant. The patrol car eventually stopped the auto in question and Officer Pfaff and the patrol car driver approached it almost simultaneously. Pfaff immediately recognized defendant as the man sought and the parole agents arriving a moment later also recognized him. He was arrested for parole violation.

He was advised of his rights, to which he responded: “I want to see a lawyer.” Defendant’s actions were very slow and deliberate, he was unsteady on his feet and his eyes were pinpointed and showed little reaction to light. There were old puncture marks, on his arms and one that the officer thought was new. Officer Pfaff was of the opinion that defendant and his woman companion were both under the influence of narcotics.