Barraza

The Case

Appellant stands convicted after jury trial of one count of selling heroin in violation of Health and Safety Code section 11352. He was also found to have sold or furnished more than one-half ounce of a substance containing heroin in violation of Penal Code section 1203.07, subdivision (a)(2). This section precludes the court from considering probation. Appellant was sentenced to prison for the midterm of four years.

We affirm appellant’s conviction; however, for the reasons to be explained, we reject the trial court’s finding that it was precluded from considering probation for appellant because he was found to have sold or furnished more than one-half ounce of heroin. We remand for resentencing.

The Facts

Alfred Pena contacted an undercover narcotics officer on November 4, 1985, to say he had four ounces of heroin to sell for $6,000 an ounce. Pena arranged to meet with Officer Alvarado at a McDonald’s parking lot at 3 p.m. that day. Pena said he would be in a Mustang and would have two other people with him.

When Alvarado drove into the parking lot, he saw Pena waving at him. He also noticed a Mustang parked in one of the stalls. One man was seated behind…