People v. Barboza

ASHBURN, J. Defendant Albert Betres Barboza was convicted after jury trial of selling a narcotic on or about January 22, 1962, in violation of section 11501 of the Health and Safety Code. He admitted four prior felony convictions. The defendant’s motions for a probation report and for a new trial were denied, and he was sentenced to the state prison [443]for the term prescribed by law. Defendant appeals from the judgment.

Four claims of error are advanced by the defendant, namely, (1) insufficiency of the evidence, (2) error in allowing the prosecution to recall the defendant for the purpose of impeaching him after both sides rested, (3) error in cross-examination of defendant regarding the four prior convictions without affirmatively stating that the examination was for impeachment purposes only, and (4) error in refusing to allow defendant to have a probation report filed even though he was not eligible for probation.

An appellate court is bound by the evidence favorable to respondent, as explained in People v. Newland, 15 Cal. 2d 678, 681 [104 P.2d 778]. It is there said, in part: “ ‘We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict. ’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” Upon that basis we find the following factual situation.

On January 22, 1962, Officer Peters, accompanied by informant Ortega, was looking for people dealing in narcotics, with whom Ortega was to arrange an introduction. At approximately 2:30 that afternoon they saw the defendant on Broadway. The officer, informant and defendant walked to the officer’s car and then drove together to the intersection of Bixel and Fifth or Sixth Street, where they parked. As they were driving the officer asked the defendant, “Is your stuff any good?” The defendant replied, “Yeah, man, it’s pretty good.” As they neared Bixel the officer said to defendant, “Can you score? Can you get me a gram?” He replied, “Yeah, okay.” The officer, familiar with the prices of heroin, handed defendant $20. Defendant and Ortega then left the officer, walking south on Bixel. After a few minutes they returned to the side of the car in which the officer was waiting. The defendant got into the car and handed the officer one blue balloon which contained a white powdery substance. The officer once said that Ortega had handed him the balloon but corrected the statement on direct and cross-examination, saying that defendant had done so. The officer