People v. Cervantes

• Court: California Court of Appeals
• Writing for the Court: GRIFFIN; SHEPARD
• Citation: People v. Cervantes, 177 Cal.App.2d 187, 2 Cal.Rptr. 107 (Cal. App. 1960)
• Decision Date: 15 January 1960
• Docket Number: Cr. 1267
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Fernando CERVANTES, Defendant and Appellant.

Page 107

2 Cal.Rptr. 107

177 Cal.App.2d 187

PEOPLE of State of California, Plaintiff and Respondent, v. Fernando CERVANTES, Defendant and Appellant.

Cr. 1267.

District Court of Appeal, Fourth District, California.

Jan. 15, 1960.

Hearing Denied March 9, 1960.

Gilbert D. Lopez, Fresno, for appellant.

Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

Defendant appeals from judgment of conviction entered upon a jury verdict finding him guilty of an unlawful sale of a narcotic and of unlawful possession of a narcotic, each offense in violation of Section 11500 of the Health and Safety Code. Defendant was also charged with a prior conviction of a violation of the same code section, which charge he admitted.

The evidence revealed that George Alarcon, an undercover investigator for the Bureau of Narcotic Enforcement, was conducting an investigation of the narcotic traffic in Kings County. In the latter part of November 1958, Mr. Alarcon was introduced to the defendant and attempted to purchase marijuana from him. On December 5, 1958, Benito Rubio and Alarcon met the defendant at the latter's home. On this occasion, the defendant sold Alarcon three marijuana cigarettes and the defendant stated that he expected another supply of narcotics in a few days and that he would make some of this supply available to Alarcon when it arrived.

On the next afternoon, officers of the Kings County Sheriff's Department and the State Bureau of Narcotic Enforcement turned four five-dollar bills coated with a phosphorescent powder over to Alarcon to enable him to make the purchase of marijuana from the defendant. The purchase could not be made on that day, but on December 9, 1958, the bills were returned to Alarcon and on that date he was able to effect a purchase of 19 grams of marijuana from the defendant. Rubio acted as intermediary in this purchase and he was observed by Alarcon to meet with the defendant and leave the meeting with the bag of marijuana in his hand. Alarcon informed the officers with whom he was working that this purchase had been made. They determined to arrest the defendant at his home in Corcoran on that same evening and obtained a search warrant authorizing them to search defendant's home. It was arranged for Alarcon to precede the party of officers to the defendant's home, determine if the latter was at home, and inform the officers of this fact by means of a prearranged signal. The defendant was at home. The signal was given and the officers converged on the scene and arrested him. A search of defendant's home revealed no evidence which was used in the case, but a quantity of marijuana was discovered in a hole in the ground to the rear of the house a few feet from the place defendant was standing when he was arrested. A search of defendant's person revealed that his wallet contained three five-dollar bills having the same serial numbers as those previously given by the officers to Alarcon, and a test with ultraviolet light revealed that these bills had been coated with a phosphorescent substance. Traces of a similar substance were found on the front of defendant's coat and on his right thumb and forefinger. At the time, defendant could not explain where he had obtained these bills, nor could be explain how they came to be coated with the phosphorescent powder.

Both Rubio and the defendant testified for the defense. Rubio testified that he had never gone with Alarcon to defendant's home; that he had never purchased any marijuana for Alarcon from defendant; and stated that the marijuana which he had given Alarcon on December 9, 1958 had been purchased from an unidentified person who lived near the city dump. The defendant testified that he had no knowledge of how the marijuana discovered near his house came to be there; that he had never sold marijuana to Alarcon or Rubio; and that he had obtained the three five-dollar bills found by the officers on his person from a person who accosted him in front of a bakery and who gave him four five-dollar bills in exchange for 20 one-dollar bills. Defendant filed his notice of appeal in propria persona and petitioned this court to appoint an attorney to represent him on the appeal. This court appointed the attorney who handled defendant's case at the trial. The attorney has filed a report with a complete review of the record and states that he has failed to find any meritorious ground upon which to base an argument on this appeal. Citing People v. Dodd, 113 Cal.App.2d 682, 248 P.2d 965; People v. Sutton, 115 Cal.App.2d 751, 252...