People v. Salazar

BROWN (Gerald), P. J.

— Defendant appeals from a judgment convicting him of possessing marijuana (Health & Saf. Code, § 11530). He admitted three prior felony convictions. The People introduced testimony that on March 28, 1964, police officers found defendant in an automobile in an apparently intoxicated state; the defendant made furtive attempts to conceal something; there were cigarette papers and “roll your own" tobacco on defendant’s lap; defendant dropped a newspaper containing what appeared to be marijuana. An officer asked “Where did you get the marijuana ? ’'; defendant replied, “It’s not mine.’’ The police then arrested and placed him and a companion in the police car; before further questioning defendant volunteered, “Might as well tell the truth, the stuff isn’t ours, but we were just going to try some.’’ Marijuana was found in the automobile; marijuana debris was found in the defendant’s pockets.

Defendant took the stand and did not deny the statements or the manner in which they were made. The record is silent as to the defendant’s being advised of his rights to remain silent and to counsel.

Defendant urges that the statement is a confession and its admission into evidence is reversible error under

People

v.

Dorado,

62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], Assuming the statement “ [T]he stuff isn’t ours, but we were just going to try some’’ to be a confession, reversal is not required because an essential element under the

Dorado

test is missing; there was no “process of interrogation that lends itself to eliciting incriminating statements.’’ (See

People

v.

Stewart,

62 Cal.2d 571, 578-579 [43 Cal.Rptr. 201, 400 P.2d 97].)

Objective analysis of “the total situation which envelopes the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.’’

Stewart, supra,

at p. 579, leads to the conclusion that such a process of interrogation had not yet begun. (See