Gannaro

Appellant appeals from a judgment of conviction of possessing heroin (Health & Saf. Code, § 11500) entered after a plea of guilty.

Appellant and his wife, Jean Gannaro, were indicted on November 9, 1961, for an alleged violation of Health and Safety Code section 11500.5 (possession of heroin for sale). Their motion to dismiss the indictment made pursuant to Penal Code section 995 was denied on December 1, 1961. Both defendants thereafter pleaded not guilty and the cause was set for trial on January 8, 1962. The defendants were at all times represented by the same counsel, who was not appellant’s present counsel.

On January 8, 1962, when the case was called for trial, the district attorney filed an amendment to the indictment alleging one prior conviction as to the appellant which appellant denied. With the permission of the court and with his counsel present, appellant thereupon withdrew his former plea of not guilty and substituted a plea of guilty to the lesser and included offense of possessing heroin (Health & Saf. Code, § 11500), was arraigned for judgment and interposed a motion for probation which the court continued for hearing until January 29, 1962. The cause was…