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District Court of Appeal, Second District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Salvador PEREZ, Defendant and Appellant.*

Cr. 7804.

Decided: December 14, 1961

Salvador Perez, in pro. per. Stanley Mosk, Atty. Gen. William E. James, Asst. Atty. Gen., for respondent.

Accused by indictment of the sale of heroin, Salvador Perez was convicted in a jury trial in which he was represented by the Public Defender and was sentenced to state prison after his motion for a new trial was denied. He appeals in propria persona from the judgment and the order. Upon his application for appointment of counsel we read the record and having determined the appeal is groundless, we denied the application. Defendant has filed briefs.

The evidence of the People consisted of the testimony of a police officer that with the assistance of an intermediary he purchased heroin from defendant for which he paid defendant $10. The only factual question at the trial was whether the officer was mistaken in his identification of defendant as the seller of the narcotic. The record discloses that there was no ruling on the receipt of evidence during the trial adverse to the defendant, and the only inquiry on the appeal is whether the jury was justified in believing the testimony of Officer Calhoun against the denial by defendant that he engaged in any transaction with the officer.

Officer Calhoun testified that in company with Robert Diamond, an informer, he encountered defendant in a doughnut shop at about 6:15 p. m., December 7, 1960. Diamond pointed out defendant, referring to him as ‘Shorty.’ Diamond held a short conversation with defendant and left the shop, followed by Calhoun. They walked a short distance and waited until defendant came out of the shop; Calhoun handed Diamond $10 and Diamond went to defendant, had a few words with him, handed him the $10, received from defendant a moist orange colored ballon, whsich defendant took from his mouth and which Diamond then handed to Calhoun. At the trial it was proved that the balloon contained heroin. Promptly after the purchase was made, Calhoun selected a photograph in the police files as that of defendant. This was received in evidence, and admittedly was a photograph of defendant. Calhoun also identified the defendant in his testimony before the Grand Jury and at the trial, as the man who sold him the heroin.

Defendant denied that he had ever seen or had any transaction with Officer Calhoun or Robert Diamond. He recalled that at the time of the supposed transaction he was with a friend, Anna Maria Martinez, whose whereabouts at the time of trial was unknown to him. The remainder of his defense consisted of the testimony of Robert Edward Hayward, also known as Robert Diamond, that he never engaged in any transaction between defendant and Officer Calhoun, the testimony of defendant's half-brother Rivera, that of an acquaintance, Naomi Davalos, and the testimony of defendant himself, that he had never been known as ‘Shorty.’ However, defendant testified that his name was Salvador and he was known as ‘Chava,’ a nickname for Salvador, and as ‘Chavita’ the latter a diminutive of Chava. Since, as defendant explained, ‘Chavita’ in Spanish stands for ‘short Salvador’ or ‘little Salvador,’ ‘Shorty’ was not an inappropriate translation of Chavita into English.

The arrest and identification of defendant occurred but a few days after the indictment was returned. The identification of defendant at the trial by Officer Calhoun was positive, and unshaken under vigorous cross-examination. The denial by Robert Diamond of having participated in the transaction was what might have been expected of an informer in a narcotic case. This testimony was doubtless dictated by interest in his own security, and the weight of it was for the jury to determine, taking into consideration the debased source from which all his testimony came.

A the request of defendant a transcript of the district attorney's arguments to the jury was ordered and included in the record. The arguments were temperate, were based upon the evidence and were not improper in any respect. We have examined the instructions and find that the jury was correctly and adequately instructed.

The judgment and order denying motion for new trial are affirmed.