People v. Johnson, Cr. 3429

• Decision Date: 19 August 1958
• Docket Number: Cr. 3429
• Citation: 163 Cal.App.2d 58,328 P.2d 809
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel Louis JOHNSON, Defendant and Appellant.

Page 809

328 P.2d 809

163 Cal.App.2d 58

The PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel Louis JOHNSON, Defendant and Appellant.

Cr. 3429.

District Court of Appeal, First District, Division 2, California.

Aug. 19, 1958.

Hearing Denied Oct. 15, 1958.

James W. Funsten, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

On May 9, 1957, the appellant was indicted on six counts as follows: '1) Unlawful possession of narcotics on April 10, 1957; 2) Unlawful sale of narcotics on April 10, 1957; 3) Unlawful transportation of narcotics on April 10, 1957; 4) Unlawful possession of heroin on April 16, 1957; 5) Unlawful sale of heroin on April 16, 1957; 6) Unlawful transportation of heroin on April 16, 1957 (Health and Safety Code, § 11500)'. Appellant entered a plea of not guilty and denied the prior narcotic convictions charged by the indictment as subsequently amended. At the trial, on motion of the district attorney, the transportation counts (No. 3 and 6) and the allegations of two of the prior convictions were dismissed. Appellant then admitted the remaining prior felony convictions. The jury found the appellant guilty of the remaining four counts, possession of narcotics on April 10, 1957, sale of narcotics on April 10, 1957; possession of narcotics on April 16, 1957, and sale of narcotics on April 16, 1957. Appellant's motion for a new trial was denied. The court sentenced the appellant to the State prison for the term prescribed by law, with the terms for Counts 1 and 2 for sale and possession on April 10, 1957 to be served concurrently with each other, but consecutively with the terms for Counts 1 and 2 for sale and possession on April 16, 1957. This appeal is taken from the judgment and the order denying appellant's motion for a new trial.

The facts are as follows: John Keeys testified that in 1957, he was working as an undercover agent for the State Bureau of Narcotics, in the Fillmore area of San Francisco. To avert suspicion, he arranged to be seen around the neighborhood with a girl named 'Candy' who was known as a narcotic addict. Keeys had been informed that the appellant was a peddler of narcotics. Around April 7 or April 8, Keeys was introduced to the appellant by a man known as 'Scotty'. On April 10, 1957, Keeys saw the appellant in a pool hall next door to the Manor Plaza Hotel. Keeys asked the appellant if he could buy a five dollar 'paper'. Appellant agreed to make the sale. They walked to a lavatory in the rear of the pool hall. Appellant pulled out a finger stall containing four or five 'papers' and sold one to Keeys. Keeys left the pool hall, returned to his hotel and put the purchase into a locked compartment in his room. The following day, Keeys gave the paper to an inspector of the State Bureau of Narcotic Enforcement. On analysis by the State Chemist, the 'paper' was found to contain a grain and a half of heroin. About a week later, on April 16, Keeys again met the appellant by chance in the pool hall. Again, he and the appellant went to the lavatory, where the appellant sold him a 'paper' for $5, from several in a finger stall. On this occasion there were several other people in the lavatory. The second 'paper' on analysis by the State Chemist, was found to contain one and a half grains of heroin.

The appellant was the only witness in his own behalf. He testified that he had been introduced to Keeys by 'Scotty' and that Keeys had then asked him about buying some narcotics. He said he knew nothing about such a sale. He had seen Keeys around the neighborhood with 'Candy' and that he had occasionally played pool with Keeys. He admitted seeing Keeys in the pool hall on April 10, and April 16, but denied possessing narcotics on the days or making a sale to Keeys on either occasion. Appellant stated that the substance of his conversations with Keeys on the dates in question was a girl and some money which Keeys tried to borrow from the appellant to buy narcotics for a girl. On cross-examination, appellant indicated that he was familiar with various terms used by narcotics addicts.

Appellant contends that under the rule of People v. Roberts, 40 Cal.2d 483, 254 P.2d 501 he was improperly convicted of both possession and sale of narcotics, as the alleged possession was merely incidental to the sale. As pointed out in People v. Branch, 119 Cal.App.2d 490, at pages 495 and 496, 260 P.2d 27, at page 30 'The case [People v. Roberts] is based upon the interpretation of section 654 of the Penal Code as made by the Supreme Court in People v. Knowles, 35 Cal.2d 175, 217 P.2d 1, and People v. Kehoe, 33 Cal.2d 711, 204 P.2d 321. See, also, People v. Logan, 41 Cal.2d 279, 260 P.2d 20; People v. Greer, 30 Cal.2d 589, 184 P.2d 512; People v. Clemett, 208 Cal. 142, 280 P. 681. That code section embodies a rule of law somewhat broader than the double jeopardy rule and its corollary of included offenses. It provides that 'An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions,...