People v. Gomez

SHINN, P. J. Accused of the sale of marijuana Paz G. Gomez was convicted in a jury trial and was sentenced to state prison. He appeals from the judgment.

The points on appeal are (1) insufficiency of the evidence; (2) unwarranted limitation of the cross-examination of a witness for the People; (3) improper receipt of evidence of the People in rebuttal; and (4) failure of the court to instruct of its own motion upon the defense of alibi. We have reached the conclusion that the evidence was sufficient to justify the verdict and that other grounds of appeal are untenable.

In support of the claim of insufficiency of the evidence, it is contended that there was no credible evidence to prove a transaction involving a narcotic or to identify defendant as a participant in such a transaction. There was evidence of the following facts. One Russell Stefan, a user of narcotics, had been given money by police officers of the narcotic detail for use for rendering assistance in the apprehension of narcotic offenders. He has used the money for his own purposes and had reported to the officers that he had been robbed. While under arrest upon a narcotic charge, he offered to assist the officers in investigations. He knew defendant Gomez, having worked with him in the repair of automobiles. He also was familiar with the cars owned and used by defendant. At about 7:30 in the evening of September 28, [316196]0, Stefan drove his ear to the residence of defendant. Dalton Newland, a narcotic officer, was concealed in the rear of the car. Stefan talked with Gomez concerning the purchase of marijuana, telling him that he wanted three kilos. Instructing Stefan to follow him, defendant drove away, followed by Stefan. After traveling for several miles the cars were stopped and defendant told Stefan he had been cheeking for a “tail.” The cars were then driven for a short distance and when they were stopped, defendant told Stefan to wait where they were; defendant drove away, returned in about 15 minutes and stopped opposite the Stefan car. Stefan went to defendant’s car and there received a package of marijuana which he turned over to Newland. Stefan had received no money from the officers and passed none to defendant. Stefan testified that he had credit with defendant. Stefan gave testimony of the foregoing facts.

Newland testified that from the rear in Stefan’s car where he was concealed under a blanket he witnessed the meeting between Stefan and defendant in front of the latter’s house; he heard defendant tell Stefan to follow him; that the car stopped as described by Stefan and he witnessed Stefan’s receipt of a package from the driver of defendant’s car. He did not see Gomez to identify him after the meeting in front of defendant’s house but he identified the ear they were following as a Pontiac or an Oldsmobile and as the ear in which defendant had driven away from his house. It was the same car as the one from which Stefan received the package. Thus, Stefan was the only one who identified defendant as the one from whom he had received the marijuana. Although this transaction occurred in September 1960, defendant was not arrested until the following March.