People v. Rodriguez, Cr. 5551

• Court: California Court of Appeals
• Citation: 140 Cal.App.2d 865,296 P.2d 38
• Decision Date: 18 April 1956
• Docket Number: Cr. 5551
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Valentine Q. RODRIGUEZ, Defendant and Appellant.

Page 38

296 P.2d 38

140 Cal.App.2d 865

The PEOPLE of the State of California, Plaintiff and Respondent, v. Valentine Q. RODRIGUEZ, Defendant and Appellant.

Cr. 5551.

District Court of Appeal, Second District, Division 1, California.

April 18, 1956.

Ellery E. Cuff, Public Defender, James L. McCormick, Deputy Public Defender, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an amended information filed by the District Attorney of Los Angeles County, defendant was accused of violating section 11500 of the State Health and Safety Code, in that he did unlawfully have in his possession a preparation of heroin. The amended information also charged a prior conviction of violating the aforesaid code section, a misdemeanor. Defendant pleaded not guilty and denied the prior conviction.

Trial by jury was waived and by stipulation, the case of the prosecution was submitted on the transcript of the testimony taken at the preliminary examination, both sider seserving the right to offer additional evidence, and subject to the reservation that defendant could object to the introduction into evidence of any testimony or exhibits contained in or referred to in the transcript of the preliminary hearing. Thereafter, the trial judge indicated for the record that he had read the entire transcript of the preliminary examination. The people then rested their case.

Defendant offered no evidence but interposed an objection to the introduction into evidence of People's Exhibit 1 (a quantity of heroin found on defendant's person). The objection was overruled and the evidence admitted. The court adjudged defendant guilty as charged and found the allegation of the prior conviction to be true. Motion for a new trial was denied and defendant was committed to the California Youth Authority. From the judgment of conviction and the order denying his motion for a new trial defendant prosecutes this appeal.

The facts surrounding this prosecution are not in dispute and may be thus summarized:

On the morning of May 29, 1955, between 11:00 a. m. and 12:00 o'clock noon officers Clarence L. Barlow and E. E. Rice of the Los Angeles Police Department were on radio car duty in the vicinity of First Street and Grand Avenue, and also between Olive and Court Streets, in the city of Los Angeles. Defendant was observed by the officers in the vicinity of Olive and Court Streets, where he was standing and looking over an excavation. Defendant started to walk toward the officers, hesitated a moment, and then proceeded in the direction of the police car. Prior to this time the officers had received no information about him. One of the officers testified that defendant '* * * became nervous and so I got out of the car and as the defendant approached us I asked him if I couldn't talk to him for a moment. And during the conversation with the defendant I noticed that his eyes seemed to be pin-pointed and I asked the defendant if he wouldn't sit in the police car while we carried the conversation on and he said he would.'

Before placing the defendant in their automobile, the officers gave him a quick 'frisk' for weapons. They then drove to First Street and Grand Avenue, where a police call box was located, and 'ran a warrant on the defendant. It came back clear. There was no warrant. We told the defendant he could go.' As the latter was leaving the vehicle, officer Barlow 'noticed the newspaper sticking out of his (defendant's) left pants cuff'. The officer ordered defendant to stop and took the newspaper from the pants cuff. Three capsules (People's Exhibit 1) containing heroin were inside the newspaper. The paper was folded over on both sides and rolled. Not more than one inch in length of the paper was showing and approximately a quarter, three-eighths of an inch was sticking out of the cuff. The defendant was questioned about the capsules. He stated that he had purchased them about one-half hour prior to that from a colored fellow on Main Street.

Officer Earl E. Rice, a Los Angeles policeman, attached to Central Division, radio car, testified he had been attached to Central Station about twenty-one months. That he had made about four narcotic arrests in that area. That the four arrests were made over a period of a year. That he was not working narcotics,

Overruling defense counsel's objection that no proper foundation was laid, the court permitted the officer to testify that '[i]t is an area that we have known users and pushers of narcotics.' On cross-examination, the officer testified defendant's 'eyes were reddish and they seemed small to me. Like I say, I didn't give them a close examination.'; that 'I can't say whether every...