People v. Suber

KAUS, P. J. After a court trial defendant was found guilty of a violation of section 11501 of the Health and Safety Code. On January 17, 1963 criminal proceedings were adjourned under then section 6451 of the Penal Code—now section 3051 of the Welfare and Institutions Code. On May 26, 1965 he was returned from the narcotic rehabilitation center for further criminal proceedings. On July 14, 1965 his motion for a new trial was denied and he was sentenced to the state prison for the term prescribed by law. He then appealed.

Facts.

On April 4, 1962 Welsey E. Toles was an undercover officer of the Los Angeles Police Department. At about noon of that [1010]day Toles and one Dudley met defendant at the corner of Kenwood and Adams. There was a conversation. Defendant said he was trying to score. Dudley said: “That is what we are trying to do.” Defendant said “We might as well try together. ’ ’

Defendant and another person (John Doe) then entered Toles ’ car. Defendant directed Toles to 1186 West 37th Drive. Toles gave defendant a ten dollar bill. Defendant got out of the ear and went into an apartment. He returned in about ten minutes. He said he had to make a telephone call. ‘This is almost a sure thing; wait for my man. ’ ’ Dudley asked defendant: “Well, how is the dude’s dope?” Defendant said: “I don’t know how it is. I am not going to guarantee somebody else’s dope. I am going to take a chance, though. ’ ’

Hunter then came out of the house, entered the car and directed Toles to Normandie and Adams. The party, by then, consisted of Toles, Dudley, defendant, John Doe and Hunter.

At this point Toles ’ testimony becomes somewhat cryptic and we therefore set it forth verbatim: “At that time we met two other people, a person—The Court : Who is ‘he’? Two other people; who do you refer to by ‘he’? The Witness : Mr. Hunter is met—all of us actually met two other people. At this time we engaged in conversation. A person known to me as Smiley said, ‘If you are going to cop some narcotics, let me ride with you because I am going to the pen tomorrow and I need some narcotics because I am feeling bad. ’ Mr. Hunter, in the meantime, was making a telephone call. Incidentally—I am sorry—Now Mr. Súber handed Mr. Hunter some money. I had assumed it was the money I handed him prior to us getting to Normandie and Adams. At this time. ...”

Toles could not see exactly whether defendant handed Hunter a ten dollar bill or several bills, although it appeared to be one bill.