People v. Valencia, Cr. 6002

• Decision Date: 23 December 1957
• Docket Number: Cr. 6002
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles VALENCIA and Gilbert Palacio, Defendants, Gilbert Palacio, Appellant.

Page 377

319 P.2d 377

156 Cal.App.2d 337

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles VALENCIA and Gilbert Palacio, Defendants, Gilbert Palacio, Appellant.

Cr. 6002.

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

Dec. 23, 1957.

Hearing Denied Feb. 19, 1958.

David C. Marcus, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

FOX, Acting Presiding Justice.

Gilbert Palacio and Charles Valencia were indicted for selling heroin (Health and Safety Code, sec. 11500). Both were convicted by the court sitting without a jury. Palacio has appealed.

On February 21, 1957, Deputy Paul Gutierrez, assigned to the narcotics detail of the Los Angeles Sheriff's Office, went to a barbershop operated by Valencia in East Los Angeles. The officer was accompanied by a confidential informant who introduced him to Valencia. The officer inquired about obtaining some narcotics. Valencia told him to return at 6:00 p. m. and he would have them for him. Gutierrez and the informant returned at the appointed time and the former asked for the narcotics. Valencia told him they would have to go to his hotel and 'his connection would be there.' The trio went to the hotel, whereupon Valencia suggested Gutierrez and the informant wait at a small cafe across the street. After waiting some time, Valencia came to the cafe and told Gutierrez: 'My connection has only six grams and he wants $120.00 for them.' Gutierrez stated he would buy them and gave him $150. Valencia went back to the the hotel, returning in a few minutes with appellant, at which time a conversation took place between the parties relating to narcotics. In this conversation Gutierrez said to appellant, 'I'm a little leery of letting you have the money because I have been burned for my money before,' by which he meant that someone had taken his money and given him nothing in return. Appellant replied: 'That's not the way I work. I always give something in return.' Gutierrez 'then asked him if the narcotics were good.' Appellant said, 'I have real good stuff.' Thereupon, Valencia gave appellant $120 of the money Gutierrez had previously handed him. Valencia later returned the balance of the money to Gutierrez. The parties then went to the home of appellant's mother to obtain the narcotics. Appellant suggested that Gutierrez and Valencia ride together and that he would go with the other party. When they reached their destination appellant, Valencia and the informant went into the house. Approximately five minutes later the informant, who had been searched earlier at the sheriff's office, returned to the car and handed Gutierrez 52 capsules containing heroin.

At the trial appellant testified that he had never seen Gutierrez before, and denied having any connection with the transaction.

Appellant's initial contention is that the evidence is insufficient to support the verdict. He argues that there is no evidence in the record which establishes that he was the person who delivered the narcotics to the informant who in turn gave them to Deputy Gutierrez; since the informant did not testify, appellant asserts that his connection with the crime has not been established beyond a reasonable doubt and that he was convicted upon mere circumstantial evidence. Appellant's contention is without merit. An examination of the record discloses ample evidence to support the verdict. The conversation between appellant and Gutierrez clearly indicated that the former was about to sell narcotics to the latter. Appellant assured the officer that he always gave something for the money he received and that his narcotics were 'good stuff.' Appellant was given the $120 for the narcotics in the officer's presence. Appellant then directed the parties to a house where his mother resided and went in with the informant. A few minutes later the informant returned with the narcotics. Even though the informant did not testify, the logical inference is that appellant sold narcotics to the officer, using the informant as the medium for delivery. In People v. Bradford, 130 Cal.App.2d 606, 279 P.2d 561, the police officer contacted the defendant by means of an 'unnamed informer,' through whom the officer paid the money and to whom defendant delivered the heroin. The court held that 'the evidence amply supports the verdict' even though the informer did not testify. Because of its close factual similarity to the instant case, the Bradford case lends support to our conclusion that the evidence adequately supports the conviction. Since we must assume in favor of the verdict the existence of every fact which the trier of fact could have reasonably deduced from the evidence (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778), it is clear that the trial court's decision based upon the facts in this case may not be disturbed. And this is so even though some of the evidence is circumstantial. (People v. Newland, supra, 15 Cal.2d at page 681, 104 P.2d at page 779.)

Appellant's next contention is that he was not afforded a fair trial in that the trial court prejudged his case and showed bias against him. He bases this contention on three incidents which occurred during the course of the trial. The first of these took place at the conclusion of appellant's direct examination. At that time the judge observed: 'I don't think any cross-examination is necessary.' This statement must be viewed in the...