People v. Johnson

MUSSELL, J.

Defendants were charged with the crime of possession of a narcotic (marijuana) in violation of section 11500 of the Health and Safety Code. Smith admitted two prior felony convictions charged and a jury trial was had which resulted in verdicts of guilty as to each defendant. Motions for a new trial were denied and defendants appeal from the judgments of conviction and from the order denying a new trial.

On May 3, 1955, at approximately 3 a.m., two police officers (Kennedy and Bills) noticed a Buick convertible being driven north on Pacific Highway in San Diego in an erratic manner. Officer Kennedy testified that the Buick “appeared to be above the speed limit, following very closely another car on the highway. The Buick would approach the rear of the other car rapidly and then suddenly slam on the brakes as if he were suddenly aware of the car in front of him”; that this occurred several times and the Buick (being driven by defendant Johnson), as it proceeded north on Pacific Highway, was swerving from lane to lane “at times swerving towards the center island, practically striking it.” Upon witnessing this erratic driving for about two blocks, the officers stopped the Buick and observed there were four people in it. Defendant Johnson was in the driver’s seat, defendant Funzell Smith was seated directly behind him in the back seat, one Duran was in the front seat beside Johnson, and one Graham was in the rear seat next to Smith. Officer Kennedy testified that he asked defendant Johnson for his operator’s license and that Johnson appeared to him to be “under the influence of something. . . . His answers were somewhat slow, his speech a little slow, his eyes were dilated, and his eyelids were slightly droopy.” Johnson was then asked to step from the car and “staggered, swerved a small amount.” A field sobriety test was administered to him but it was not completed because Officer Kennedy was of the opinion that Johnson had not had enough to drink to fail a sobriety test. Kennedy further testified “I felt it was something. I didn’t know whether it was alcohol or what. I felt there was something affecting him; he was under the influence of something. How

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ever, not strongly enough to fail the 502 test”; that while he was talking to Johnson, Officer Bills remarked “something was wrong here” or words to that effect. Officer Bills talked to Duran and Graham and while Duran was coherent and responsive to questions, Graham was barely able to stand without assistance and his speech was slurred and jumbled. Duran and Graham were told to sit in the police car.