People v. Gallagher

SHINN, P. J. Robert Gallagher, Diane Kruger, Walter Vance Jolly and Phinas Eugene Green were jointly charged with unlawful possession of heroin. Diane Kruger and Jolly pleaded guilty. Gallagher, who was represented by counsel, was convicted in a nonjury trial. He made a motion for [428]new trial which was denied, probation was denied and he was sentenced to state prison. He gave notice of appeal in propria persona from the judgment and sentence which we construe to be a single appeal from the judgment.

Upon defendant’s request for appointment of counsel, the matter was referred to the Los Angeles Bar Association Committee on Criminal Appeals; a report was filed stating that after an examination of the record no meritorious ground of appeal was found. Prom our examination of the record it appeared that no benefit would result to the defendant or the court from the appointment of counsel; the request was denied and defendant was duly notified and given time to file a brief; no brief has been filed.

There was evidence of the following facts. Mrs. Kruger was living at 8146 Cheyenne Street in Downey with her mother and small son. Police officers of Downey received information that narcotics were being sold on the premises. They went to the house next door, from which they observed the Kruger house. Several days before the arrests they heard a female voice and a male voice in conversation. They heard the woman ask if “the stuff he was bringing was good or if he had been cutting it; she had bought two caps and it wasn’t very good.” The man said he “was not cutting it.” On September 12th, three days before the arrest, a black Chevrolet drove into the alley; Mrs. Kruger went to the car, exchanged something with the occupant of the car, who then drove away. On the same day Officer Harrington heard Gallagher talking on the telephone; he said “where?” and then “I’ll meet you at the big market at Paramount and Imperial.” Gallagher then left in a green Buick and returned a few minutes later. On the same day Gallagher got another phone call which he answered and said “how many?” and then “two caps. No, not there, we’ll meet you at the little store on Gardendale. ” Soon afterwards, he left, walking toward the store, which was two blocks away. On September 15th, the officer had seen Jolly and Green enter the house from a white Mercury which belonged to Green’s wife. The arrests were made immediately thereafter.

Officer Siple testified that on September 13th he heard a telephone being dialed and a male voice identified as that of Gallagher saying “this is Bobby” and “want a score this afternoon” and then “Diane and I are going out this evening. If he wants a score it will have to be before six” and then “we are going to the hock shop on Central Avenue to get my suit back.” On another occasion he heard Gallagher, ap