People v. Baltazar

MUSSELL, J.

Appellant was accused in an information of the crime of possession of a narcotic, a felony, in that on or about February 27, 1957, in the County of San Bernardino he did wilfully, unlawfully and feloniously possess the narcotic

cannabis

sativa, also known as marijuana, in violation of section 11500 of the Health and Safety Code. The information also charged appellant with having suffered a prior felony conviction of selling a narcotic, and also a prior felony conviction of tampering with marks on certain firearms (Pen. Code, § 12090). Appellant admitted the prior convictions and a jury returned a verdict finding him guilty of the crime of possession of a narcotic, as charged in the information. His motion for a new trial and application for probation were denied and he was sentenced to imprisonment in the state prison for the term prescribed by law.

On or about February 15, 1957, Officer James E. Willis, assigned to the vice and narcotic division of the San Bernardino sheriff’s office, received information from a reliable informant to the effect that the appellant was using narcotics and that he was selling narcotics in a barbershop where he was employed in Cucamonga. On or about February 24, 1957, this same informant again advised Willis that the sale of narcotics was going on in the vicinity of the barbershop and, on February 27, 1957, another reliable informant advised Willis and Detective Alter of the San Bernardino Police Department that appellant was selling narcotics in the barbershop area in Cucamonga, that appellant had narcotics in his possession at that time, and that he had received a large quantity thereof from Mexico. Willis had used information

[597]

furnished by these two informants on previous occasions and made several arrests based on information furnished by them.

After receiving the said information from the second informant, on February 27, 1957, Willis, accompanied by Detective Shepherd of the San Bernardino sheriff’s office and Detective Alter of the San Bernardino Police Department, drove to the barbershop in Cucamonga. They arrived there about 8 p. m. and, after observing a man and a small boy leaving the shop, they entered the premises through the front door. Willis walked over to the appellant and said, “Hello, Baton.” Appellant made no reply to this greeting and Willis then said, “Baton, I understand that you have got narcotics on you. You are under arrest.” Appellant then reached to his right hand shirt pocket in a rapid manner and then put his hand “down along the side of his trousers leg.” Willis grabbed appellant’s hand and said, “What have you got, Baton, what do you have in your hand?” Appellant opened his hand and Willis found therein a small newspaper-wrapped parcel which contained a hand-rolled cigarette, which was partially burned. Willis asked appellant what the object was and the latter replied that it was a “roach”—part of a burned marijuana cigarette. When asked where he got it, appellant stated he had found it on the floor. Willis then said, “Well, Baton, if you found it on the floor, you must know what it was when I walked in, otherwise you wouldn’t have tried to get rid of it.” The appellant then said, “Yes, I knew what it was, I knew it was my ass if I got caught, you know, I am on parole.” Willis placed the “roach” in an envelope and later delivered it to a chemist who examined it microscopically and chemically and found that it consisted of the leaf and plant of