People v. Gebron

WOOD (Fred B.), J.

The defendant has appealed from the judgment rendered against him upon conviction of three violations of section 11500 of the Health and Safety Code; one for furnishing marijuana and two for selling marijuana. He has also appealed from an order denying his motion for new trial. The trial was before the court without a jury.

Defendant claims (1) the evidence is insufficient to support the judgment and (2) the trial court erroneously shifted the burden of proof to the defendant.

[676]

(D

The evidence amply supports the judgment.

It consists chiefly of the testimony of the police officer, Douglas Hall, who as an undercover agent contacted defendant and made the purchases. Defendant took the witness stand, admitted that Hall contacted him on some of the occasions narrated by Hall but denied furnishing or selling or having possession of any marijuana.

As defendant’s counsel aptly remarked upon motion for new trial, “the case turns upon whether or not the Defendant is to be believed or whether or not the arresting officer is to be believed. ’ ’ That was an issue of fact for determination of the trier of the facts. In the absence of anything inherently improbable in the testimony of Hall, a reviewing court must accept that determination. Defendant points to no such improbability in Hall’s testimony, and we have found none.

Defendant says the plaintiff called no corroborating witness even though some eyewitnesses were known to Hall. This is not the type of case in which the law requires corroboration. Some of those witnesses were known to defendant and were friends of his, yet he did not call them to corroborate his testimony.

Defendant directs attention to the fact that Hall was serving a probationary period as a new appointee to the city police force and therefore had a motive to prosecute and procure convictions to demonstrate to his superiors his ability and efficiency. We cannot indulge in any such speculation. His ambition, if he was ambitious, could as well stimulate him to do an honest job as undercover agent.

In the course of his undercover work, Hall was furnished cash by the head of the morals squad for use in making purchases. Defendant says, in effect, that Hall was not businesslike in accounting for those moneys and did not recall how much marijuana he purchased during a particular 24-hour period. That is not a compelling reason for disbelief of the officer’s testimony. Moreover the record does not bear out the contention. It was really but a matter of an indistinct recollection of the details of transactions which occurred some eight months before the date of the trial. Concerning marijuana purchases, Hall said he would have to consult his notes at home before he could speak with accuracy as to those details. That was quite natural and does not suggest prevarication or a motive to prevaricate.