People v. Strelich

THE COURT.

Steven L. Strelieh was convicted in a court trial of the possession of marijuana. It was alleged that he had previously served a term in prison after being convicted of violation of narcotic laws (Health & Saf. Code, § 11500). Defendant was arraigned on the prior conviction, denied it, and the court made no finding thereon. The appeal is from the judgment and an order denying his motion for new trial.

Upon the trial defendant was represented by attorney Patrick E. Duggan. Defendant applied to this court for appointment of counsel on the appeal, asserting that he was without funds. The court appointed Mr. Duggan, who accepted the appointment; defendant discharged Mr. Duggan and requested the appointment of another attorney; defendant’s rejection of Mr. Duggan as his attorney was arbitrary and not based upon any rational ground. We reviewed the trial transcript and found that Mr. Duggan gave the defendant vigorous and competent representation at the trial. It also clearly appeared from the record that the case was tried without error and that the appeal has no merit. The request for appointment of other counsel was denied. (See

People

v. Tabb, 156 Cal.App.2d 467 [319 P.2d 656].) Defendant was notified under rule 17(a), Rules on Appeal, was given time in which to file a brief and none has been filed.

Under stipulation there was introduced the testimony of William King given at the preliminary examination. He had examined capsules containing leafy material that had been taken from defendant, and found them to be marijuana. After the receipt of the testimony of the arresting officers the marijuana was offered in evidence; defendant objected

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upon the ground that it had been seized unlawfully. The objection was overruled and the capsules and contents were received in evidence.

Officers Lestelle and Hill received information through official channels that there were two outstanding warrants issued by the municipal court for the arrest of defendant for traffic violations. They were likewise informed that Strelich had served a term in state prison for violation of the narcotic laws, and that he was suspected of being engaged in the sale of narcotics. The officers were not given the warrants for service. No search warrant had been issued. The officers went to the address of defendant; Officer Hill knocked, a woman answered the door, the officer identified himself, stated he wished to talk with Strelich and was admitted by the woman. He saw defendant go from the living room into a bathroom where he stood on top of a bathtub looking out of the upper portion of a window. Hill placed defendant under arrest upon the traffic warrants. As they were returning to the front room, down a hallway, defendant appeared to be highly nervous and kept making motions as though to reach into his trouser pockets. He was told to keep his hands in plain sight. Officer Lestelle was then admitted to the house. Defendant made another motion as though to reach into his pants pocket. Officer Hill reached into defendant’s front trousers pocket and extracted a vial containing a leafy substance which he identified as marijuana. The officer testified that he thought there was a possibility defendant had a weapon in his pocket or some sort of contraband. A search was then made of the premises and other marijuana was found, including part of a marijuana cigarette and some scraps of leafy material identified as marijuana. Although the officers did not have in their possession either of the traffic warrants, which were at the time in the headquarters office, there was no demand that they be shown to defendant and there was no necessity that they be in the possession of the officers. (Pen. Code, § 842.) They were introduced in evidence at the trial.