People v. Barrera

SHINN, P. J. In a court trial upon an information charging him in Count I with possessing marijuana and in Count II with selling and furnishing marijuana, Howard Richard Barrera was found guilty of Count II and Count I was dismissed in the interests of justice. He appeals from the judgment.

Upon application of appellant for appointment of counsel the matter was referred to the Committee on Criminal Appeals of the Los Angeles Bar Association with a request for a report which would direct our attention to any matter disclosed by the record which would indicate that the applicant might be entitled to some relief. Upon receipt of a [491]report from a member of the committee that no meritorious ground of appeal had been found, and in accordance with our settled practice, we examined the record in order to ascertain whether appointment of counsel would serve any useful purpose. Having determined that the appeal appeared to be without merit we denied the application for appointment of counsel and notified appellant of our order, substantially extending his time to file a brief. No brief having been filed, we have reexamined the record and are disposing of the appeal by written opinion.

The evidence consisted of that received at the preliminary hearing and additional evidence introduced at the trial. Leo Berman, a Los Angeles County sheriff’s deputy, testified that he made arrangements with Michael Mosca to buy two tins of marijuana. On July 23, 1958, he went to Mosca’s house, where he met Mosca and a man named Walker. The three men got into Berman’s car and drove to an address in Lennox mentioned by Mosca; Berman gave Mosca two ten dollar bills. Upon their arrival, Mosca got out of the car, entered a house and returned after a few minutes, stating that his connection was not there. Mosca then directed Berman to an apartment house in Inglewood. Mosca entered the premises and returned a few minutes later in the company of appellant. After Mosca introduced Barrera to Berman, the latter asked appellant to purchase two tins of marijuana for him. Barrera told him to drive to another location in Inglewood; the officer complied. As appellant got out of the car, he said: “I will see what I can do, I don’t know whether this fellow has anything.” When Barrera returned he got into the back seat of the car and handed to Mosca two wax paper bags, which Mosca handed to Officer Berman; the bags were proved to contain marijuana. Appellant told Berman: “These might be a little short but it’s the best I can do.”

Mosca was called as a witness for the People at the preliminary hearing. In response to questioning by the deputy district attorney, he admitted being in the company of Officer Berman on July 23d and admitted meeting appellant. However, he denied that Berman had given him any money and when asked whether he was present when Barrera returned to the car with the two packages of marijuana he denied having seen anything. The deputy stated that he was surprised by this testimony of the witness and sought leave to ask leading questions; appellant objected; after some dis