People v. Garcia

SCHOTTKY, J. Appellant was charged with having in his possession a preparation of heroin in violation of section 11500 of the Health and Safety Code, and was also charged with three prior felony convictions. He pleaded not guilty to the possession of narcotics charge but admitted the prior convictions. Following a verdict of guilty and the denial of probation and of a motion for a new trial, judgment was pronounced against appellant. This appeal is from the judgment and from the order denying appellant’s motion for a new trial.

The principal contention of appellant is that the evidence is insufficient to sustain the conviction. Before discussing this contention we shall give a brief summary of the evidence.

On December 1, 1953, at approximately 4 o’clock in the afternoon, two state narcotic officers observed appellant crossing Second Street between K and L Streets in the city of Sacramento. The narcotic inspectors immediately stopped their car, and one of the officers jumped out and came up behind appellant who was then entering the Deuce of Hearts, a Sacramento drinking establishment. As appellant entered the bar the officer placed him in custody by grabbing him around the shoulders and holding his arms at his sides. Just prior to his being placed in physical custody, the officer observed appellant throw something from his left hand. The other officer had continually observed appellant as he entered the bar, and saw appellant’s left arm make an “outward motion . . ., out and back,” just prior to his being physically apprehended by his fellow narcotic inspector.

The narcotic inspectors examined the area in the immediate vicinity of the entrance to the bar and found five capsules on the floor of the café, just inside the entrance door. The officer identified the capsules as the objects which he had observed appellant throw from his left hand just prior to his being held in physical restraint. An expert chemist established that the contents of each of these capsules contained heroin.

Appellant was subsequently taken to the State Narcotic Bureau offices in Sacramento, where he requested that he be allowed to converse with the supervising narcotic inspector. Upon being granted this request he then asked the supervising-inspector if he could “get him a break” or “Can you do anything for me!” to which the supervisor replied that he could not make any “promises to you in any way whatso[253]ever,” and that he “couldn’t . . . and wouldn’t do anything for him. ...” Appellant then told the supervisor that “he had purchased fourteen capsules of heroin, that he had sold all but five and that he had been arrested with the five . . . that the reason he had been selling it was because he was trying to raise money to leave Sacramento and that was his means of raising money.” Subsequently, appellant made an identical statement in the presence of the supervising inspector and one of the arresting narcotic officers. After being denied his request for leniency appellant further stated: “Well then I guess I better have a jury trial and see if I can get out of it.”