People v. Johnson

FOURT, J.

The defendant herein was charged, in an infor mation filed in Los Angeles County, with a violation of section 11500, Health and Safety Code, in that on or about January 2, 1957, he had in his possession a preparation of heroin. The information further set forth that the defendant had been convicted of a felony in January, 1950, in Alameda County and had served a term in prison therefor, and that he had been convicted of the crime of violation of section 11500, Health and Safety Code, a felony, in Los Angeles County in April, 1952, and had served a term in prison therefor. The defendant pleaded not guilty and denied the prior convictions. A trial by jury was waived, and by stipulation of counsel the plaintiff’s ease in chief was submitted on the transcript of the testimony taken at the preliminary hearing and the exhibits referred to therein. At the trial the defendant testified in his own behalf and stated under oath that he had been convicted of the prior felonies charged in the information, in

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fact, that he had just been released from prison on the prior narcotics charge.

After the trial the judge found the defendant guilty as charged and found that it was true that he had twice previously been convicted of a felony. Defendant made an application for probation and a probation officer’s report was ordered. At the time of sentence defendant’s counsel requested the judge, “in the interest of justice,” to strike the priors, to the end as he said, “give your Honor more discretion if he wants to give him County Jail time. If not, it will give the Department of Corrections a greater discretion in handling it. . . . He of course only had one bindle. ...” The judge then struck the first prior felony conviction, denied the defendant’s application for probation, and sentenced the defendant to the state prison.

This appeal is from the judgment of conviction.

The facts are substantially as follows: G. W. Beckman, a member of the Los Angeles Police Department, at about 8:20 o’clock p. m. on January 2, 1957, talked with an informer he had known for about four years. The informant, a user of narcotics, had been used by the officer previously and had given the officer reliable information upon which arrests had been made. The informant gave the officer the description of a man who was “dealing narcotics” a few minutes before their conversation. The informant stated that the man, who became the defendant herein, was wearing a grey hat with a black band and an orange shirt, that he limped, and that he was standing in front of the Morris Hotel, which was about a block away. The officer saw the defendant a few minutes thereafter in front of the hotel where he stayed for a short time and then started to walk away. The officer followed the defendant until he went into an alley-way, and then the officer maneuvered the police car with the bright lights on the defendant, got out of the car and told the defendant he was under arrest “for suspicion of narcotics.”