People v. McKinney

JEFFERSON, J.

In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of possession of marijuana in violation of section 11530 of the Health and Safety Code. A prior felony conviction of violation of section 11500, possession of marijuana, was alleged. Defendant entered a plea of guilty and submitted the determination of the prior to the court. Thereafter, at defendant’s request, the guilty plea was set aside, a plea of not guilty was entered, and defendant denied the allegation of the prior conviction. Defendant personally and all counsel waived trial by jury. Defendant was found guilty as charged. Motion for a new trial was denied. Probation was denied. The court found defendant to be in violation of probation on the prior conviction. Probation was thereupon revoked and defendant was sentenced to state prison for the term prescribed by law on each offense. The sentences were ordered to run concurrently.

Defendant appeals from the judgment of conviction and the order denying his motion for a new trial (2d Crim. 8463). As to the prior, defendant appeals from the judgment and order revoking probation (2d Crim. 8464).

On August 16,1961, Police Officers Boyd and Denver were riding in a marked patrol car eastbound on Adams Boulevard in the City of Los Angeles. At approximately 3:40 a.m. they observed a vehicle traveling in the opposite direction

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on Adams Boulevard. Both occupants in the vehicle looked in the direction of the police car and appeared to be nervous. The officers watched the vehicle as it passed them and one observed that the rear license plate illumination was out, whereupon they followed the car. The vehicle made a left turn on a side street and stopped after going a half block. Both the driver and defendant got out of the car. The officers approached the two persons. Officer Denver told the driver that the illumination above his rear license plate was out, and asked that he display his operator’s license. The driver advised the officers that he didn't have a license; that he had stopped the car in order that defendant, who had a driver’s license, could switch places with him and drive the car.

Officer Boyd made a shakedown search of defendant for weapons. He observed a bulge in the left breast pocket of defendant’s shirt and asked defendant if he could look at the object. Defendant answered affirmatively. The officer reached into the shirt pocket and retrieved a small address-type book. As the officer was about to examine the book, defendant grabbed it and began to run away from the scene. The officer gave pursuit and apprehended him across the street. Before being apprehended, defendant dropped or threw the notebook to the ground. As the officer picked up the notebook he noticed that certain articles had become dislodged from it and were lying about on the ground. Among these objects, the officer observed two paper-wrapped cigarettes which in his opinion resembled marijuana.