People v. Alvarez

HERNDON, J.

Defendant Jesus Alvarez appeals from the judgment of conviction which was rendered against him after a nonjury trial upon an indictment charging the sale of heroin in violation of section 11501 of the Health and

[407]

Safety Code. The sole assignment of error presented for our consideration is the assertion that prejudicial error was committed when the prosecution was allowed to introduce evidence in rebuttal which should have been introduced as part of its case in chief. Appellant necessarily concedes that “there was evidence which, if believed, was sufficient to support the judgment.”

In summary, the evidence presented in the prosecution’s case in chief consisted of the testimony of a Los Angeles Police Officer, David Peters, that on November 30, 1961, said officer and an informer purchased from appellant approximately one-half an ounce of heroin. The sale was made in a parking lot in the City of Los Angeles while appellant was seated in a Buiek automobile. The officer testified that he believed he recalled seeing a driver in the ear with appellant but was not positive for the reason that he “was paying particular attention to [appellant] and not to anybody else.” The officer made notes concerning the transaction immediately afterward, and, while he did not know appellant’s true name at the time of the sale, he had seen him both before and after the sale and was able to identify him from his picture in a “mug book.” At the close of the officer’s testimony the People rested. The informer was present and, at the court’s direction, he arose for identification during the officer’s testimony, but he was not called to the stand.

Appellant then took the stand and presented a defense, the essence of which was a claim of mistaken identity. He admitted that he knew the informant, but denied that he had ever seen the officer before and denied making the sale of heroin as alleged. He stated that he had just gotten out of jail on the date in question, that he was broke and that he was living with a friend. He denied that any of his friends owned a Buiek automobile at that time. He admitted two prior burglary convictions and one prior conviction of the sale of heroin. (The two prior burglary convictions were charged against him in the indictment and were found to be true. The conviction of the sale of heroin was not charged since it occurred after the indictment was filed.)