People v. Reyes

LILLIE, J.

A jury found defendant guilty of selling heroin (§11501, Health & Saf. Code) ; he admitted that he had been convicted of four prior felony convictions (two burglaries, robbery and possession of narcotics). Motion for a new trial was denied and defendant was sentenced to the state prison for the term prescribed by law, the sentences to run concurrently with other sentences he was then serving. He appeals from the order denying his motion for a new trial; he did not appeal from the judgment. An order denying a motion for new trial is not appealable and the purported appeal therefrom should be dismissed. (§1237, Pen. Code;

People

v.

Ing,

65 Cal.2d 603, 614 [55 Cal.Rptr. 902, 422 P.2d 590].) However, inasmuch as defendant acted in propria persona in filing his notice of appeal, in the interest of justice wé will liberally construe the notice of appeal and review the merits as though the judgment were before us.

(People

v.

Gotham,

185 Cal.App.2d 47, 50-51 [8 Cal.Rptr. 20].)

Officer Salcido, an undercover narcotics investigator, had

[771]

been working in the fall of 1967 on a buy program for the Los Angeles Police Department; he had been introduced to an informant known only as Rudy. Around 11 a.m. on December 4, 1967, Officer Salcido met Rudy at the Grand Central Market where he gave Rudy from $15 to $20 to be used to purchase narcotics during the day; around 5:30 p.m. they went to the Brass Rail Tavern where they sat together at the bar. Shortly thereafter defendant came in and sat down a few stools to the right of Rudy; Rudy went over to talk to him. Officer Salcido went to the men's room and was followed by Rudy, then defendant. The three stood around one of the sinks while Rudy negotiated the purchase of a $10 balloon of heroin from defendant; it took about two minutes during which the officer gave Rudy $5 and at the conclusion of which Rudy gave defendant $10; defendant then took from his mouth a red balloon and handed it to Rudy who gave it to Officer Salcido. After paying Rudy for his services in arranging the sale, Officer Salcido took the balloon (Exh. 1) directly to the police building and checked it with Central Property.