People v. Walker

FOX, J.

Defendant was charged with the possession of marijuana in violation of section 11500 of the Health and Safety Code. It was also alleged that he had suffered a prior conviction for violating the same code section and had served a term in the state prison therefor. He entered a plea of not guilty and denied the prior conviction.

Upon a trial by the court without a jury defendant was found guilty, and the charge of a prior conviction was found to be true. Defendant appeals from the ensuing judgment.

Defendant seeks a reversal upon these grounds: (1) that the People failed to prove (a) that he knowingly had possession of narcotics; and (b) that the bag containing marijuana introduced in evidence was ever in his possession; (2) that his arrest was procured through unlawful entrapment. There is no substance in either of these contentions.

In order to sustain a conviction of possession of narcotics it must be shown that the defendant had either physical or constructive possession, and that he was aware that the substance of which he had possession was a narcotic.

(People

v.

Gory,

28 Cal.2d 450, 456 [170 P.2d 433].) Such knowledge, of course, may be shown by the conduct and behavior of the defendant.

(People

v.

Foster,

115 Cal.App.2d 866, 868 [253 P.2d 50].)

The evidence discloses that Police Officers Kennedy and Neale discovered a paper sack containing marijuana which had been completely hidden in a pile of weeds in a vacant lot opposite 4530 South Hoover Street, in the city of Los Angeles. They kept the lot under observation. Defendant approached the lot in a ear driven by Morris Johnson, whom defendant had known for three or four months. He left the car, went

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to the pile of weeds, which were some 10 feet from the sidewalk, and was seen bending over them. He was then observed removing a paper sack from this pile of weeds, after which he started to return to the waiting car at the curb. When he had almost reached the automobile the police officers identified themselves. When the driver of the vehicle energized the motor, one of the officers drew his gun and commanded him to stop. At that juncture, while in the act of seating himself in the vehicle, defendant threw the bag away in an underhanded motion, the officers retrieving it as it rolled down the street. Defendant admitted to the police, and also testified, that he threw the paper sack away because he was “scared.” Scientific tests disclosed that the bag contained marijuana.