People v. Powell

California Court of Appeal Dec 23, 1960 No. Crim. 7184Published

Before: Fourt

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Holding. The court affirmed the defendant's conviction for the sale of heroin, holding that the evidence was sufficient to support the judgment and that the trial court's determination of witness credibility and identification was conclusive.

Issues

Whether the evidence was sufficient to support the conviction for the sale of heroin.
Whether the trial court's identification of the appellant was sufficient as a matter of law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The identification of the appellant by the officer in this case was positive. It was for the trial judge to pass upon the credibility of the witnesses and to resolve any conflicts in the testimony.”

“It cannot be said as a matter of law that the judgment is without support in the evidence.”

“The evidence clearly shows that appellant at the very least aided and abetted in the commission of the crime charged.”

FOURT, J.

This is an appeal from a judgment and from the order denying a motion for a new trial in a proceeding wherein appellant was found guilty of a violation of section 11501, Health and Safety Code.

In an indictment returned in Los Angeles County appellant, with several other unnamed persons, was charged with having sold heroin on or about November 12, 1959. Appellant was also charged with having been convicted twice previously of violating the provisions of section 11500, Health and Safety Code, namely on March 15, 1951, and on January 30, 1959. The appellant pleaded not guilty and admitted the two charged prior convictions. A trial by jury was duly waived and the judge found appellant “guilty as charged.” The judge then set February 23, 1960, as the date when the matter “for probation and sentencing” would be heard.

On February 23, at the time of sentencing the following occurred:

“Mr. Kempley: (Attorney for Appellant) If your Honor please, at this time I make a motion to withdraw the admission of the two prior convictions in this matter.

“The Court: Does the District Attorney wish to contest the motion?

“Mr. Lewis: (Deputy District Attorney) No, your Honor.

1 ‘ The Court : The motion will be granted.

“What is your desire with respect to the priors at this time?

“Mr. Kempley: We will waive a jury trial, your Honor, and have the court try the matter.

“The Court: Is that your desire, Miss Powell?

[711]

“The Dependant: Yes, it is.

“Mr. Lewis : People join in the waiver.

“The Court: Are the People prepared at this time to proceed on that matter?

“Mr. Lewis: The People have no evidence to offer, your Honor.

11 The Court : The court makes no finding with respect to the priors.”

People v. Powell

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FOURT, J.

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