People v. Poe

BRAY, P. J. Defendant was convicted by the court, a jury having been waived, of three counts of violation of Health and Safety Code section 11500, (1) sale of heroin on Septem[595]ber 11, 1958, (2) sale of amidone on September 15, and (3) sale of amidone on September 16. The court found two prior convictions, violating sections 11721 and 11715, Health and Safety Code.

Questions Presented

1. Sufficiency of the evidence: Lack of corroboration of narcotics agent and discrepancy in hour of sale under count 1.

2. Variance as to the character of the narcotic between testimony at the preliminary examination and charge in information.

1. Evidence.

Jess A. Ojeda, an inspector with the California Bureau of Narcotic Enforcement, testified that on the dates charged he purchased from defendant at the Seaman’s Union Hall the narcotics charged, detailing the circumstances.

There was no corroboration of his testimony concerning the sales as to the first two counts. Two other inspectors testified to seeing Ojeda and defendant together at the time and place specified by Ojeda, except that .one of these inspectors placed the time involved in count 1 as 1 p. m. whereas Ojeda gave it as about 11:45 a. m. One inspector saw Ojeda and defendant together at the time and place given by Ojeda as to the third count. This testimony, of course, was not sufficient to establish corroboration of Ojeda’s testimony of the sales, if corroboration were required.

It is well settled that in a prosecution under Health and Safety Code, section 11500, the testimony of the prosecuting officer does not require corroboration. (People v. Gebron (1954), 124 Cal.App.2d 675, 676 [268 P.2d 1068]; see also People v. Castro (1959), 167 Cal.App.2d 332, 336 [334 P.2d 602].) Defendant cites no eases to the contrary but refers to Ojeda’s mistake at the preliminary examination as to the narcotic hereafter discussed and the difference in the time under the first count between that given by Ojeda and that by one inspector. Obviously, these were matters for the determination of the trial court whose determination is binding on this court. (People v. Bryant (1958), 157 Cal.App.2d 528, 534 [321 P.2d 45]; People v. McCrasky (1957), 149 Cal.App.2d 630, 635 [309 P.2d 115].)

2. Variance.