People v. Mendez

Opinion

ASHBY, J. Defendant was charged in count I of the information with possession of heroin for sale (former Health & Saf. Code, § 11500.5),1 in count II with burglary (Pen. Code, § 459), and in count III with receiving stolen property (Pen. Code, § 496). He pleaded not guilty. A motion under section 1538.5 of the Penal Code, submitted on the preliminary hearing transcript, was denied. Defendant withdrew his not guilty plea to count I and pleaded guilty, upon appropriate waivers (Boykin v. Alabama, 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl, 1 Cal.3d 122 [81 [608]Cal.Rptr. 577, 460 P.2d 449]), to simple possession of heroin (former Health & Saf. Code, § 11500),2 a lesser included offense to that charged. The guilty plea was the result of a plea bargain pursuant to which the two remaining counts were to be dismissed and an alleged prior felony conviction was to be stricken. Following diagnostic studies pursuant to section 1203.03 of the Penal Code, defendant was sentenced to state prison. The sentence was suspended and defendant was placed on five years’ probation, conditioned, among other things, upon his spending the first year in county jail. Credit was allowed for 95 days already served. He appeals from the judgment (order granting probation).

Richard Salazar had been a narcotic investigator for the City of Los Angeles for one and one-half years. He had been a police officer for eight years and had qualified in court as an expert on the use and sale of narcotics. At about 8 p.m., February 11, 1972, Salazar had under surveillance the El Bandolero Cantina and Bar at Alabama Street and Sherman Way. Salazar had gone to the location because of information from numerous informants during the preceding month that narcotics transactions were taking place at the bar. The most recent such information had come to Salazar the previous day.

Salazar observed a known narcotic user, one Rafael Bracamente, approach defendant in front of the bar. Bracamente appeared to hand something to defendant. Defendant removed an object from his mouth and handed it to Bracamente, who placed it in his own mouth and walked away. Defendant went into the bar. Salazar concluded that a narcotic transaction had taken place. Although he had been unable to see what the object was which passed from defendant’s mouth to Bracamonte’s mouth, the officer knew that this was a method employed by narcotics dealers so that if confronted by police they could swallow the contraband in their possession.