People v. Leiva, Cr. 5217

CourtCalifornia Court of Appeals
Writing for the CourtMOORE
Citation285 P.2d 46,134 Cal.App.2d 100
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. John LEIVA, Defendant and Appellant.
Docket NumberCr. 5217
Decision Date24 June 1955

Page 46

285 P.2d 46
134 Cal.App.2d 100
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
John LEIVA, Defendant and Appellant.
Cr. 5217.
District Court of Appeal, Second District, Division 2, California.
June 24, 1955.
Rehearing Denied July 7, 1955.
Hearing Denied July 20, 1955.

Page 47

John F. Leiva in pro. per.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Indicted for having sold a preparation of heroin in violation of the Health and Safety Code, section [134 Cal.App.2d 101] 11500, appellant was convicted by a jury of such crime, and also the court found that he had suffered two prior felony convictions. The judgment decreed that he be imprisoned for the term prescribed by law. He demands a reversal on the sole ground that the indictment failed to state facts sufficient to constitute a cause of action.

He specifies that the pleading does not allege the name of the vendee who purchased the narcotic and that such omission is a fatal defect. 'A sale' he asserts 'must be a transaction between two or more parties.' He argues that (1) the true test of the sufficiency of an indictment is whether the record shows with accuracy to what extent he may plead a former adjudication of the facts alleged in the indictment; (2) because the indictment is thus fatally defective, the judgment is void and in violation of both the applicable statutory provisions and of the Fourteenth Amendment; (3) the Indeterminate Sentence Law, Penal Code, secs. 1168, 3020, 3041, provides that the final determination of appellant's sentence shall be determined by the Board of Prison Terms and Paroles, i. e., the Adult Authority; (4) because the cited code sections divest the superior courts of their power and confer it upon the Adult Authority in violation of Article

Page 48

VI, section 1, of the state's constitution which confers the judicial power upon designated courts, they deprive a convict of his right of due process of law.

He supports his theses with quotations from numerous decisions and text writers and concludes that the judgment of his conviction is void. Notwithstanding the skill and learning displayed in the brief, filed in propria persona, appellant thereafter requested this court to appoint counsel to prosecute his appeal. An attorney 1 was appointed. He made an investigation of the proceedings prior to the trial, the evidence admitted, the verdict and judgment, and advised the court that the appeal is without merit. That such advice must be approved will presently appear. The facts are simple; the judgment is valid.

For a year prior to appellant's arrest, the police department of Los Angeles had assigned officer Manuel Gutierrez to the narcotics division. He operated as an undercover agent, wore old clothes, long hair and a mustache. Accompanied by a friend on January 26, 1954, he drove on West Temple Street and parked his car. He was promptly approached [134 Cal.App.2d 102] by appellant who was familiarly hailed by Gutierrez' companion. Thereupon appellant inquired: 'Are you guys trying to pick up?' Gutierrez replied: 'Yes, we want three for ten dollars if it is good stuff.' Appellant assured the officer that he would not 'burn you guys; it is good.' He then entered the...

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14 practice notes
  • State v. Gallegos, No. 1327
    • United States
    • Supreme Court of Arizona
    • November 12, 1965
    ...that a vendee's name need not be set forth in the information. See Taylor v. United States, 8 Cir., 332 F.2d 918, and People v. Leiva, 134 Cal.App.2d 100, 285 P.2d 46. Appellant's remedy was by an application for a bill of particulars prior to Appellant asserts error by the trial court in p......
  • In re Schoenfeld, A131917
    • United States
    • California Court of Appeals
    • February 28, 2012
    ...merciful measures are administrative and were properly vested in the executive branch of the government." (People v. Leiva (1955) 134 Cal.App.2d 100, 103.) "The imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions.&qu......
  • People v. Newville, Cr. 4265
    • United States
    • California Court of Appeals
    • September 17, 1963
    ...right of the defendant upon the merits.' (See People v. Howes (1950), 99 Cal.App.2d 808, 816, 222 P.2d 969; People v. Leiva (1955), 134 Cal.App.2d 100, 103, 285 P.2d 46; People v. Massey (1957), 151 Cal.App.2d 623, 649, 312 P.2d Section 1404 provides as follows: 'Neither a departure from th......
  • People v. Holland, Cr. 3371
    • United States
    • California Court of Appeals
    • March 21, 1958
    ...shows sales to Marge Hackney and appellant is fully protected against further charges based on the same offenses. People v. Leiva, 134 Cal.App.2d 100, 103, 285 P.2d Appellant made no objection to the admission of evidence of the second sale on August 23. He is in no position to urge error i......
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14 cases
  • State v. Gallegos, No. 1327
    • United States
    • Supreme Court of Arizona
    • November 12, 1965
    ...that a vendee's name need not be set forth in the information. See Taylor v. United States, 8 Cir., 332 F.2d 918, and People v. Leiva, 134 Cal.App.2d 100, 285 P.2d 46. Appellant's remedy was by an application for a bill of particulars prior to Appellant asserts error by the trial court in p......
  • In re Schoenfeld, A131917
    • United States
    • California Court of Appeals
    • February 28, 2012
    ...merciful measures are administrative and were properly vested in the executive branch of the government." (People v. Leiva (1955) 134 Cal.App.2d 100, 103.) "The imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions.&qu......
  • People v. Newville, Cr. 4265
    • United States
    • California Court of Appeals
    • September 17, 1963
    ...right of the defendant upon the merits.' (See People v. Howes (1950), 99 Cal.App.2d 808, 816, 222 P.2d 969; People v. Leiva (1955), 134 Cal.App.2d 100, 103, 285 P.2d 46; People v. Massey (1957), 151 Cal.App.2d 623, 649, 312 P.2d Section 1404 provides as follows: 'Neither a departure from th......
  • People v. Holland, Cr. 3371
    • United States
    • California Court of Appeals
    • March 21, 1958
    ...shows sales to Marge Hackney and appellant is fully protected against further charges based on the same offenses. People v. Leiva, 134 Cal.App.2d 100, 103, 285 P.2d Appellant made no objection to the admission of evidence of the second sale on August 23. He is in no position to urge error i......
  • Request a trial to view additional results

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