People v. Barraza

Opinion

FRANSON, P. J. The Case

Appellant stands convicted after jury trial of one count of selling heroin in violation of Health and Safety Code section 11352. He was also found to have sold or furnished more than one-half ounce of a substance containing heroin in violation of Penal Code section 1203.07, subdivision (a)(2). This section precludes the court from considering probation. Appellant was sentenced to prison for the midterm of four years.

We affirm appellant’s conviction; however, for the reasons to be explained, we reject the trial court’s finding that it was precluded from considering probation for appellant because he was found to have sold or furnished more than one-half ounce of heroin. We remand for resentencing.

The Facts

Alfred Pena contacted an undercover narcotics officer on November 4, 1985, to say he had four ounces of heroin to sell for $6,000 an ounce. Pena arranged to meet with Officer Alvarado at a McDonald’s parking lot at 3 p.m. that day. Pena said he would be in a Mustang and would have two other people with him.

When Alvarado drove into the parking lot, he saw Pena waving at him. He also noticed a Mustang parked in one of the stalls. One man was seated behind the wheel and another, appellant Barraza, was standing outside the car looking under the hood.

Pena approached Alvarado and introduced himself. He said he had the four ounces but it belonged to the two men in the Mustang. Alvarado asked to talk with one of the men and see the heroin. Pena walked to the Mustang and spoke with the two men.

[616]Pena and appellant returned to Alvarado’s truck. Alvarado discussed the quality and quantity of the “chiva” (heroin) and the possibility of future buys. Appellant stated that the heroin was good, and he could supply Alvarado with 20 ounces or more. When Alvarado asked to see the “chiva,” appellant handed him a towel wrapped around a taped package. Alvarado took the towel and package, and tore a section of the tape to examine the contents. The package contained a black tarry substance which he believed to be heroin. Alvarado told appellant he would be back with the money and walked away. Alvarado gave a prearranged signal, and the three men were arrested.