People v. De Santiago

McCOMB, J.

I dissent. I would affirm the order.

Respondent’s petition for a rehearing was denied May 21, 1969. McComb, J., was of the opinion that the petition should be granted.

In a nonjury trial defendant Mario De Santiago was acquitted of a charge of selling heroin (Health & Saf. Code, § 11501) and convicted of the possession of heroin for sale (Health & Saf. Code, § 11500.5). His motion for a new trial was denied, criminal proceedings were adjourned, and, after proceedings had pursuant to Welfare and Institutions Code section 3051 et seq., defendant was committed to the state hospital at Corona for- treatment as an addict. We properly entertain, in these circumstances, defendant’s appeal from the order denying his motion for a new trial. 1

On February 10, 1966, Deputy Sheriffs Trujillo and Pen-land, together with other officers, by prearrangement met one Henry Estrada, a reliable informer, in an alley near defendant’s apartment. Earlier that day Estrada had told Deputy Trujillo of a conversation with defendant during which the latter stated that on February 8 he had been arrested by *21 narcotics officers for “marks,” that he had tricked them into releasing him by offering to help them apprehend a “dope peddler,” but that he never contacted the officers. Estrada also told Deputy Trujillo that he had purchased heroin from defendant on two occasions.…