People v. Cassel

Opinion

JEFFERSON, Acting P.J.

Defendants were charged by information in courit I with possession of a narcotic, to wit, cocaine, in violation of section 11500 of the Health and Safety Code and in count H with possession of marijuana, in violation of section 11530 of the Health and Safety Code. Each of defendants’ motions under sections 995 and 1538.5 of the Penal Code were denied.

Each defendant personally waived jury trial and their causes were submitted to the court pursuant to stipulation, on the proceedings had at the preliminary examinations, each party reserving the right to additional evidence at the time of trial.

The court found each defendant not guilty on count I and guilty as charged in count II.

Each defendant’s motion for new trial was denied and each defendant was given a one-year county jail sentence which was suspended on a grant of probation for a two-year period with the provision, inter alia, that each pay a fine in the sum of $200 plus penalty assessment.

Defendants attempt to appeal from the order denying their motions to suppress under Penal Code section 1538.5 and from the orders denying new trial motions. These are nonappealable orders. We treat the purported

[717]

appeals from the motions and orders as appeals from the orders granting probation. (Cal. Rules of Court, rule 31(b).)

On April 27, 1970, Prentiss Frost was employed by the U.C.L.A. Police Department as a patrol officer. While on patrol at 3:45 a.m. on that day he observed a 1965 Mercedes automobile being driven eastbound on LeConte Avenue near Westwood Boulevard. He stopped the vehicle because a white light was showing instead of a red right rear taillight. He considered this a violation of section 25950, subdivision (b) of the Vehicle Code. As he approached the vehicle, he observed the two defendants, husband and wife, seated in the rear passenger seat. Defendant Seymour was seated on the left hand side and his wife on the right hand side.

The officer signaled the driver to stop and he asked for and received from him a California operator’s license. The officer inquired if the driver was the owner of the Mercedes. The defendant responded from the back seat, advising the officer that he was the owner and that his friend was merely driving his automobile. The officer then asked defendant Seymour to step from the vehicle in order that he point out to the owner the nature of the violation. The defendant stepped from the automobile and walked to the rear, a distance of 4 feet. He looked at the light and quickly got back into the car, slamming the rear door. As defendant Seymour re-entered the automobile, he “made a quick fast movement with his right hand,” and he appeared to place an object in the crevice of the seat between him and his wife. However, the officer testified that he did not see anything in defendant’s hand.