People v. Olivas

FOURT, J. This is anappeal “from an order denying a motion for a new trial. ’ ’

In an indictment returned in Los Angeles County appellant was charged with selling heroin on August 8, 1961. It was further charged that appellant had previously been convicted of two felonies (rape and pimping) and had been convicted (and had served a sentence) on one charge of violating section 11500, Health and Safety Code (possession of narcotics). Appellant pleaded not guilty and ultimately admitted the prior felony charges of rape and pimping. The court found the charge of the prior narcotics activity to be true. After a jury trial appellant was found guilty as charged. A motion for a new trial was denied and, as above indicated, the appeal is from the order of denial. Such an order is not appealable under the provisions of Penal Code section 1237, subdivisions 1 and 2; however inasmuch as appellant filed his own notice of appeal we are inclined presently to interpret liberally the notice of appeal and we have dealt with it as if it were a notice of appeal from the judgment.

A résumé of some of the evidence as disclosed by the testimony is as follows: at about 5 p.m. on August 8, 1961, Milton Reade, an undercover agent of the sheriff’s narcotics detail parked his unmarked ear at the intersection of Mednik and Torreno Streets in East Los Angeles. He had made about 20 purchases of narcotics in the month, up to and including the 8th day of August. He was dressed in khaki trousers, sport shirt and sandals, and wore a mustache and goatee beard. He was accompanied by a narcotics informant and upon parking his car, crossed the street and entered a handball court located close by, wherein the officer saw appel[474]lant sitting on a bench. There were about 15 other persons on or near the handball court.

Beade seated himself beside appellant and asked him if he had “a half,” meaning a half gram of heroin or five No. 5 capsules. Appellant was holding a newspaper over his lap. He did not reply immediately to Beade’s inquiry; however, he very shortly thereafter withdrew five gelatin capsules from a container and handed them to Beade who, after placing the capsules in a cellophane wrapper, paid appellant $10 of county advanced funds. The informer Hall was nearby throughout the transaction between appellant and Beade, although Hall did not introduce Beade to appellant.

Upon leaving the immediate vicinity, Beade made a written notation of the license numbers of four automobiles which were parked directly in front of the handball court. One of these cars was a 1953 Buick automobile which was registered to appellant.