People v. Davis

LILLIE, J. Defendant was charged with selling heroin (§ 11501, Health & Saf. Code), and five prior felony convictions—grand larceny, selling and distributing opium, obtaining money by false pretenses, robbery and forgery. The case was heard by the court sitting without a jury; defendant was found guilty of possession of heroin, a lesser and necessarily included offense; no finding was made on the first, second or third prior but the fourth and fifth were found to be true. Defendant appeals from the judgment and sentence.

On July 25, 1965, Officer Parks, an undercover narcotic officer, was introduced to defendant at Barbara Ettes ’ apartment on East Adams. Present were defendant, Officer Parks, Barbara and Oscar Coates. Defendant was dressed in black and when he removed his shirt he had tattoos on each shoulder and a scar on his right side. The next day (July 26, 1965) around 4:30 p.m., Officer Parks was riding in Oscar Coates’ Ford when he saw defendant walking eastbound on Sixth Street. Coates called over to defendant and defendant entered the vehicle; Coates told him he wanted him to “score”; defendant asked, “What?” and Coates replied, “A spoon.” Defendant directed Coates to a certain location where Coates parked; defendant got out of the vehicle and asked Coates for the money; Officer Parks gave Coates $25 which he handed to defendant; defendant then walked north. They waited for defendant and around 6 p.m. he returned saying he couldn’t “get a spoon” but had gotten three bags for a quarter; he handed three balloons to Coates who handed them to the officer. Defendant was arrested around the first week in August and advised of his constitutional rights.

[625]Defendant testified that he met Officer Parks once, on July 26, 1965; he was on Sixth Street, and Coates, Barbara and the officer drove by; Coates whistled at him; he asked Coates, “can I get a thing?” (a balloon of heroin) and accompanied them to an apartment on Bast Adams; Coates prepared the “stuff”—“proceed[ed] to chop it up, you know, mix it up”—on the kitchen table and put it in balloons; Coates gave him the “first bag” (balloon); he gave himself a “shot” of “dope,” as did the others; his shirt was tight so he took it off to give himself the shot. Defendant admitted using heroin but denied selling any narcotics to Officer Parks.

Oscar Coates was called as a witness for the defense; however, after giving his name he refused to testify on the grounds that any testimony he would give may tend to incriminate him.