People v. Montero

KAUFMAN, P. J.

Appellant, R. J. Montero, and his co-defendants, R. L. Green and C. W. Martinie, were charged jointly by an information dated December 30, 1960, in two counts: the first for possession of marijuana in violation of section 11530 of the Health and Safety Code, the second for possession of a deadly weapon in violation of section 12020 of the Penal Code. All three entered pleas of not guilty, and after properly waiving a jury trial, were tried together

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on February 10, 1961. The court found appellant Montero and Martinie guilty of possessing marijuana as charged in count one, but dismissed the deadly weapon count as to both; Green was found guilty on both counts. After denying the defendants’ respective motions for a new trial, the court entered its judgment committing Montero to the Youth Authority for the term prescribed by law.

On this appeal from the judgment, Montero contends that the evidence is insufficient to show that he had knowledge of the presence of the drug, which is an essential element of the crime of possession. The question of the weight of such evidence is not for an appellate court and we cannot say that the circumstances hereafter related as a matter of law gives rise to a mere suspicion and do not permit a reasonable inference of guilt.

By stipulation, the People submitted their case on the transcript of the preliminary hearing, which revealed the foh lowing: About midnight on December 3, 1960, several San Francisco police officers answered a report of a noisy party at an apartment house at 3415 22d Street. The officers contacted the landlady and proceeded to apartment number 6 where they heard loud music and “people moving around.” When the police knocked and identified themselves, the music stopped but the sounds of people moving continued. The landlady informed the officers she had seen the tenant of the apartment leave earlier. When she and the policemen attempted to enter with a key, they found the door double-locked. The officers then investigated a sound at the rear of the apartment and discovered one Dudley departing through the rear window. When Dudley saw the police, he returned through the window and admitted the police through the front door.

In the apartment, the two officers found two girls beneath a bed with a hypodermic needle between them. The girls stated that “three of the fellows” had gone to North Beach to buy more narcotics. About 45 minutes later, the landlady alerted the officers that the three men who had been at the apartment earlier were circling the block in an automobile. Ten minutes later, she told the officers the same car had parked in the parking area behind the apartment house. The officers proceeded to the parking lot and saw Martinie outside the car. On seeing the police officers, he started back toward it. The officers halted him and ordered the appellant Montero, who