People v. Clayton

BRAY, P. J.

Defendant appeals in propria persona from convictions after jury trial, of three counts of violation of section 11531 of the Health and Safety Code (selling marijuana) .

Questions Presented

1. Was defendant denied due process of law under the Fourteenth Amendment to the United States Constitution because of denial of his request for a continuance of trial?

2. Was the police inspectors’ testimony inadmissible hearsay?

Evidence

On August 24, 1959, Frank Fox, an undercover agent of the Menlo Park Police Department, met defendant in a parking lot. He purchased two marijuana cigarettes from the defendant. There ivas no witness to this transaction. On August 27 the police strapped a transmitting device on Fox. Two officers waiting in their car near the parking lot overheard a conversation between Fox and defendant. Reference was made therein to the quality of the “stuff.” Defendant and Fox then went to defendant’s house to get some marijuana. This placed them out of range of the transmitter. Fox later met the officers and turned over to them the marijuana he had purchased from defendant. On September 13 Fox arranged a meeting with defendant and notified the police inspectors. Once again he carried the transmitting device. The officers were about 60 feet from Fox’s car. Fox called to defendant who came over and entered Fox’s ear. Fox then made a third purchase of marijuana. The testimony of the officers as to what they heard on the transmitting device tended to corroborate Fox’s testimony as to his purchases from defendant. Defendant denied ever selling any narcotics although he admitted having told Fox that he would get some for him.

[592]

1.

The denial of a continuance.

On direct examination Fox stated that he had previous experience as an undercover agent in Kansas. On cross-examination he stated that he had worked for a little over a year, about 1951, in Kansas City, Kansas, as an undercover agent, working he thought, for Inspector Lions. At the completion of the prosecution’s ease defendant moved for a continuance for approximately 30 days to take the deposition of the administrative captain of the Kansas City Police Department. Defendant’s attorney filed a “Declaration” in which he stated that he had phoned to a Captain Lukas, the administrative officer of that police department, who stated that the department never had the rank of inspector; that there had been a Sergeant Lyons, who had been pensioned and was now dead; that Sergeant Lyons at no time was connected with the narcotic bureau of said department and that said bureau had never had an officer in it by the name of “Lions.” The court denied the motion for continuance.