People v. Mendivil

SHEPARD, J.

This is an appeal from a judgment of conviction of a violation of section 11500 of Health and Safety Code (possession of narcotics, heroin), after a full jury trial and a verdict of guilty. Defendant’s notice of appeal is defective in form, but because it was filed timely and sufficiently indicates his intent to appeal, we will treat it as sufficient. He appeals “in propria persona.” In response to our inquiry regarding points of error, trial counsel has stated, in a communication addressed to this court, that he knows of no prejudicial error in the trial, but gives points for possible consideration. The attorney general has reviewed the proceedings, and likewise is unable to discover prejudicial error. A full transcript of the trial proceedings was sent to defendant in June 1960. Another attorney who stated he had agreed to represent defendant on appeal, filed a request for further time

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to examine the transcript of proceedings. On his request on behalf of defendant, the matter was continued from April 1960 to June 1960. However, no brief was ever filed. The cause was finally placed on the calendar for August 6, 1961.

Facts

In general substance, the facts shown by the record before us are as follows: January 20, 1960, Francis L. Ertey, an employee of the city of San Bernardino, saw three persons drive into the park where Ertey was working. Defendant was a passenger in the car. He got out alone and with one hand in his pocket, walked directly to a spot near a hedge in the park. He stooped down and “was messing with the ground.” He scraped it and then smoothed it over with his hands, then went to a nearby restroom, returned to the car, and the three drove away. The other two occupants did not leave the car during this time. Ertey wrote down the car license number and a description of the car. He then went to the spot where defendant had been moving the ground and found, three or four inches under the surface, a package, which was later identified as containing crystalline bits of heroin and a needle, eyedropper, capsule and spoon. Testimony showed that this equipment was the “outfit” commonly used for intravenous injections of the narcotic heroin. Ertey called the police. Some hours later, defendant was arrested and interrogated. Pie at first denied possession, and also denied knowledge of the contents of the package. He further denied that he had ever been near the park at the time indicated. Defendant had a series of puncture marks making a “track” along the vein of his inner left arm.