Saldana

David Saldana and his brother, Edmundo Saldana, were charged with one count of possession of heroin for sale (Health & Saf. Code, § 11351; count I). David Saldana was also charged in a second count with possession of marijuana for sale (Health & Saf. Code, § 11359; count II). The trial was severed and the appellant, David Saldana, was found guilty by a jury as to both counts charged. He was sentenced to state prison to serve a concurrent term of two years on count I and sixteen months on count II.

David contends that the conviction for possession for sale of heroin must be reversed because the trial court judge committed prejudicial error when he failed to instruct the jury sua sponte on the lesser included offense of simple possession. By way of petition for writ of habeas corpus, David further contends that he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution, when defense counsel failed to make a discovery motion for the name and whereabouts of an informant mentioned in a search warrant. David also claims that when defense counsel elicited…