People v. Ausbie

JEFFERSON, J. Dudley Ausbie (defendant) and Sammie Pickens (not appealing), were charged by an information filed by the District Attorney of Los Angeles County with the crime of possession of a narcotic, heroin, in violation [539]of section 11500 of the Health and Safety Code. The information alleged four prior felony convictions against Dudley Ausbie, to wit, larceny from person on July 1, 1940; grand larceny on May 29, 1944; burglary on December 20, 1948, and illegal sale of heroin on February 11, 1958. Defendant entered a plea of not guilty and denied the prior convictions. Defendant personally and all counsel waived trial by jury.

Defendant did not testify in his own behalf but called codefendant as a witness. Defendant was found guilty and a probation report was ordered. Defendant and all counsel stipulated that the truth or falsity of the priors be submitted to the court for determination at the time of sentence. Defendant’s motion for new trial was denied. The prior convictions were found to be true. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law.

Defendant petitioned this court for the appointment of counsel to represent him on appeal. This court, having made an independent investigation of the record and having determined that it would be neither advantageous to defendant nor helpful to this court to have counsel appointed, denied the application, whereupon defendant prosecutes this appeal in propria persona.

Joseph F. Spelman testified he was attached to the narcotics division of the Los Angeles Police Department; he, with two other officers (without a search warrant), went to an apartment house at 2727 South Budlong Avenue, Los Angeles, California. They kept apartment 23 under surveillance from 7:30 a. m. to 9:30 a. m. on July 21, 1961. They had received information that defendant was living in apartment 23 and he was dealing in narcotics. The officer observed from his vantage point codefendant Pickens approach the entrance of apartment 23, knock on the door and be admitted to the apartment. In a few minutes defendant came out of the apartment and proceeded down the hallway. He moved out of view and returned to apartment 23 in approximately five minutes. Someone from inside the apartment opened the door and was standing just in the doorway; defendant came up to the doorway and handed codefendant Pickens what appeared to be capsules. Codefendant looked in the officer’s direction, threw up his hands and dropped the two capsules to the floor. Defendant attempted to close the door, but Officer Spelman pressed against it, entered the apartment and placed defendant under arrest. The two capsules were retrieved by his