Pimental

Defendant, tried by a jury, appeals from a judgment sentencing him to state prison for violation of Penal Code section 667, petty theft by a previously convicted felon. In addition to the charge upon which defendant was convicted, he was also charged with violation of Health and Safety Code section 115.01 (offer to sell narcotics). Both counts were based upon a single transaction. The jury acquitted defendant of the narcotics charge. There are three contentions: (1) violation of article I, section 8, of the Constitution of the State of California (trial on a charge previously dismissed by a magistrate); (2) error in denial of a Penal Code section 995 motion; (3) prosecution misconduct in (a) alluding to defendant’s prior felony conviction in the jury’s presence and (b) arguing unproven facts. The judgment will be affirmed.

Facts

The prosecution’s proof included: On October 22, 1968, on a Sacramento street, Ayres, an undercover agent of the State Bureau of Narcotics, was introduced to defendant by one Frank Garza, a narcotics user who had become an informer. On October 24 Ayres with Garza again met defendant on a street corner and offered to buy heroin from defendant.…