People v. Goldy

FILES, J.

After a court trial defendant was convicted of possession of marijuana in violation of section 11530, Health and Safety Code. His motion for a new trial was denied. The court suspended proceedings and granted probation for a period of three years on various conditions, one being that defendant spend 30 days in jail. Defendant has appealed from the order denying the motion for new trial and the judgment (i.e., the order granting probation).

The two points raised by defendant are (a) legality of the search which produced the marijuana, and (b) sufficiency of the evidence.

The evidence which supports the decision of the trial court is as follows: Defendant was involved in a traffic accident and failed to stop. He was arrested shortly afterwards and taken to a hospital to be examined for the influence of narcotics. Marks from some prior use of narcotics were observed on his arm. Defendant told the examining doctor he had taken a prescribed narcotic for sleep.

The following morning at the jail defendant, who was still in custody, was interviewed by two officers regarding his use of narcotics. Defendant said he had not used for a month. He said he had no narcotics at his home. One of the officers asked if they could search defendant’s residence and defendant stated, “Yes, you are welcome to.’’

The two officers escorted defendant to his home, where a search was made. One of the officers found a package containing 6 grams of marijuana in the pocket of a man’s coat which was hanging in the bedroom closet. The officer showed the package to defendant and asked whom it belonged

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to. Defendant stated that he had forgotten about the marijuana in the coat, that he had had it for several years.

The search having been made with the consent of the defendant, it was neither unreasonable nor unlawful. The fact that the party consenting is then in custody does not necessarily invalidate the permission given. Whether the defendant consented to the search in a particular ease is a question of fact to be decided in the trial court.

(People