People v. Martin

[388]

BARNARD, P. J.

The defendant was charged with the crime of possession of a narcotic in violation of section 11500 of the Health and Safety Code. He was found guilty by a jury and his motion for a new trial and request for probation were denied. Since he was under 21 years of age he was committed to the Youth Authority for the term prescribed by law. He has appealed from the judgment, from the order denying a new trial, and from the order of commitment.

At 1:35 a. m. on June 24, two San Diego police officers in a patrol car were making a routine nightly check of a beach area in La Jolla. They saw an unlighted Chevrolet parked across a short road leading down to the beach, thus blocking access to the beach area. The car was occupied by three persons, one Switzer in the driver’s seat, the defendant on the right side of the front seat, and a Miss Gutierrez between them. One of the officers walked up to the car on the driver’s side for the purpose of determining why the vehicle was parked in that position. When he turned on his flashlight he saw that the entire front of Switzer’s shirt was sprinkled with particles of a green botanical substance which appeared to him to be marijuana. The other officer approached, and also thought it was marijuana. Switzer was placed under arrest and ordered out of the car. Miss Gutierrez also got out of the car on the driver’s side. The officer then noticed a brown paper package on the floor of the ear between the defendant’s bare heels. The officer asked the defendant to hand him the package, which the defendant did. The package contained a considerable quantity of what the officers believed to be marijuana. The defendant said he did not know what it was and did not know it was there, and that he had never used marijuana. He was placed under arrest, and Switzer said this was his stuff. An examination of the car disclosed marijuana debris on both the front and back floor boards, and on the rear floor board there was a burnt marijuana cigarette about

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in length, and brown “roll your own” cigarette papers. There were numerous burnt matches on the ground on both sides of the vehicle below the front windows. The defendant explained this by saying that his cigarette kept going out and he had to relight it numerous times. Both officers testified to these general facts.