People v. Ramirez

GRIFFIN, P. J.

Defendant-appellant Ernest Frias Izzo and defendant Jesus Ramirez were charged in count one of an indictment with selling a narcotic (heroin), [in violation of Health & Saf. Code, § 11500] on August 9, 1957. In the second count the same charge is made against appellant as occurring on August 16, 1957. Both defendants pleaded not guilty. Ramirez admitted a prior conviction of a felony (possession of narcotics) and that he served a term therefor in

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prison. Appellant admitted two prior felonies (burglary and robbery). A jury trial resulted in a conviction of appellant as charged and he was sentenced to state’s prison. Defendant Ramirez was found guilty of possession of narcotics under count one, a claimed included offense. Motions for new trial were denied. Appellant alone appeals and claims: 1, that the evidence is insufficient to establish (a) his identity; and (b) that the crime was committed in San Bernardino County ; 2, that the court gave inconsistent instructions in reference to lesser and included offenses; and 3, that the verdict is contrary to law and inconsistent in that the jury found Ramirez guilty of a claimed included offense (possession of narcotics) and appellant guilty of sale, upon evidence which was exactly the same as to both defendants.

One Edward Nunez, the People’s chief witness, a special deputy sheriff, was, on August 9th, 1957, at about 7 p. m., on duty in Cucamonga. While driving down 24th street appellant stopped him and asked him what he was doing. Nunez replied he was looking for one Elias. Appellant stated he did not know where he was but if Nunez was looking for “junk” (heroin) he knew where he could obtain some in Pomona. Defendant Ramirez approached them about that time and asked Nunez what he was doing there. Nunez replied he was invited by appellant to obtain some “junk” in Pomona and Ramirez stated he was going with them. After some discussion Nunez agreed to drive his car. They drove to Pomona and parked near a super-market at appellant’s direction. Nunez was then asked by appellant: “How much do you want?” and Nunez replied “two caps” (capsules of heroin). Appellant said: “Why don’t you give me $12.00 and I will get you 3?” Nunez then gave him $12.00 and he left. Several minutes later Nunez and Ramirez picked up appellant. They obtained two paper cups and some water and started back to Cucamonga. En route, appellant sterilized a hypodermic needle, broke a capsule and dropped it into a paper cup. Both defendants injected themselves. Ramirez assisted appellant. Nunes declined to “fix” himself. At one stage of the proceedings Ramirez called appellant “Panadero” (Spanish word for baker,—appellant’s trade.) Appellant, seated in the back seat, gave the two “caps” to Ramirez, who was seated in the front scat with Nunez, and said: “Give it to him” (Nunez), and defendant Ramirez did so in San Bernardino County, about five miles east of the Los Angeles County line, near Cucamonga. These “caps” were contained in a cellophane