People v. Wright

• Decision Date: 10 October 1963
• Docket Number: Cr. 8669
• Citation: 221 Cal.App.2d 109,34 Cal.Rptr. 292
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert WRIGHT, Defendant and Appellant.

Page 292

34 Cal.Rptr. 292

221 Cal.App.2d 109

The PEOPLE, Plaintiff and Respondent, v. Albert WRIGHT, Defendant and Appellant.

Cr. 8669.

District Court of Appeal, Second District, Division 4, California.

Oct. 10, 1963.

John W. Loucks, Los Angeles, for defendant and appellant.*

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Pose Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

By an indictment of Los Angeles County grand jury, defendant was charged with selling narcotics, heroin, in violation of section 11501 of the Health and Safety Code. The indictment was subsequently amended to charge two prior felony convictions, (1) possession of narcotics, a felony, and (2) violation of the Dangerous Weapons Control Law, also a felony. Defendant pleaded not guilty. Trial was by the court, trial by jury having been duly waived by defendant and all counsel. Defendant and all counsel also waived trial by jury on the issue of the determination of the truth or falsity of the priors as alleged in the indictment. Defendant was found guilty as charged and the priors were found to be true. Probation and defendant's motion for a new trial were denied. Defendant moved the court for a referral of his case, pursuant to the provisions of section 6451 of the Penal Code, on the grounds of his addiction to narcotics, or of his being in imminent danger of addiction, which motion was denied by the court.

Defendant, although represented by counsel at the trial, originally appeared on appeal in propria persona. ¹ Thereafter, at defendant's request, John W. Loucks was appointed to represent defendant on appeal.

Wesley E. Toles testified he was an undercover officer for the narcotics division of the Los Angeles police department. He had seen defendant approximately two or three times within two weeks prior to the date of March 23, 1962, (the date of the alleged narcotics transaction), and had talked with defendant on at least two occasions.

At approximately 2:10 p. m. on March 23, 1962, Officer Toles, accompanied by Tom Dudley, an informer, was driving his auto on Central Avenue in Los Angeles when he observed an automobile occupied by defendant and Roscoe Dandy. The informer called to defendant, who was driving, and defendant motioned for them to follow him. Defendant drove to the 700 block on Kohler Street and parked. The four persons alighted from their automobiles and engaged in conversation. Dandy said, 'Look, man, we only have three caps. When you buy them we can all go over to Red's house and fix.' (Meaning to take an injection of heroin.) The informer answered, 'You must be crazy. You are out of your mind. You think we are only getting three caps and you think we are going to give you some.' Defendant then asked Officer Toles, 'Listen, man, while they are arguing, let's you and I go and have a talk.' When defendant and the officer had walked a short distance from Dandy and the informer, defendant said, 'Listen, you are a pretty good kid. Are you sure you aren't the man? ' (Meaning in narcotics jargon, a policeman.) The officer replied, 'Well, what makes you think I'm the man, Red? ' Defendant replied, 'No one has ever seen you fix.' The officer stated, 'Well, Red, no one has ever seen me fix because I try to be in secret. The more people that know your business, the greater the change you're taking and you're subject to the penitentiary.' Defendant agreed. He then told Officer Toles he used dope because of his ankles. He showed the officer his legs, which appeared to be swollen and discolored at and above the ankles. The officer then said, 'Look, man, I'm going. If you sell me some * * * if you sell me narcotics * * * some dope, you won't be able to sleep at night. You think I'm the man. I'm leaving.' Defendant said, 'No, wait a minute.' After some further argument in the same vein the officer gave defendant a ten dollar bill and defendant handed the officer a one dollar bill and three capsules. Officer Toles took the capsules to the Police Administration Building and later arrested defendant.

At the trial it was stipulated by and between all counsel that the three capsules contained in Exhibit 2, were the three capsules that Officer Toles testified he bought from defendant. It was further stipulated that Richard Bingle was called as an expert and testified that he made a clinical examination of the capsules and in his opinion the capsules contained heroin.

Defendant testifying in his own behalf, denied he knew Officer Toles and stated that the first and only time he has ever seen him before was on the night of his arrest. He denied ever having been in the vicinity of Kohler Street of that he frequented that area. He also denied he was ever in the presence of Tom Dudley (the informer), or Roscoe Dandy. He denied he sold any narcotics to anyone in March of 1962, and in response to the query by defense counsel, 'Did you ever sell narcotics to anyone else in March?' defendant answered 'No, sir, I never had enough to sell.' He admitted he had been using narcotics prior to this date. He denied that he showed his ankles to the officer or to anyone else. He admitted, however, that he did have some difficulty with his ankles.

In defendant's briefs on appeal filed in propria persona, his principal ground for appeal is the 'insufficiency of the evidence to sustain a conviction.' Defendant's counsel, in his brief, concedes that 'construing the evidence in favor of the judgment there is sufficient evidence to sustain the judgment of the trial court as a violation of section 11501, of the Health and Safety Code.' We agree.

Defendant (through his appointed counsel) contends that the alleged prior convictions should have been determined before they were offered in evidence as an exhibit. This contention is without merit. The record reflects defendant personally and all counsel waived the right of a jury trial on the issue of determination of truth or falsity of priors and that the truth or falsity of the priors might be determined by the court at the time of probation and sentence. At the time of the stipulation the People offered...