People v. Venegas

WOOD, P. J. In a nonjury trial defendant was convicted on two counts of unlawfully selling heroin. He appeals from the decision, judgment, and order denying a motion for a new trial.

Appellant contends that he was denied due process of law [796]and a fair trial because the prosecution failed to produce, as a witness, a person who participated in “the crime alleged in the information.”

Pursuant to stipulation the case was submitted upon the transcript of the preliminary examination, subject to the right to offer additional evidence.

Officer Trujillo testified that on May 14, 1959, about 12:05 p. m., he was in his automobile which was parked in front of the Western Electric Corporation Building in Los Angeles; a Mexican man, whom the officer had met at the Ebony Room on Brooklyn Avenue, was in the automobile with the officer; at said time the defendant, whom the officer had met about five days previously, came out of the building and walked in front of the officer’s automobile, and went to the other side of the street and stopped at a place which was about 30 feet from the automobile; then the Mexican went to the defendant, had a conversation with him, and returned to the automobile ; the officer gave $20 to the Mexican, who then returned to the defendant and handed the $20 to him; the defendant handed a blue object to the Mexican, who then returned to the automobile and handed a blue balloon to the officer; the balloon contained ten capsules which were filled with white powder.

The officer testified further that on the same day, about 2.35 p. m., he saw the defendant in front of the same building; at that time the defendant came out of the building, entered the officer’s automobile, and sat in the rear seat; the officer told defendant that the Mexican might not be able to come with the officer on the following day and that the officer wanted to come and pick up some stuff for himself; defendant, after saying that would be “OK,” asked if the officer wanted anything at that time; the officer replied that he did not have much money with him; defendant said he would give him two caps for $4.00; the officer gave him $5.00, and the defendant gave the officer two capsules of white powder and $1.00.

It was stipulated that a chemist would testify that the capsules, above referred to, contained heroin.

The officer testified further that on June 18, 1959, he and four other officers went to the front of the building above referred to.and arrested the defendant; the officer (witness) had a conversation with defendant wherein the defendant said that he did not remember selling heroin to the officer, but he did sell heroin to the person who was with the officer.