People v. MacHado

[65]

GRIFFIN, P. J.

Defendant appeals from a judgment following conviction by the court, jury trial having been waived, of possession of marijuana in violation of Health and Safety Code, section 11500 (now Health & Saf. Code, § 11531, as to marijuana, added by Stats. 1959, ch. 1112).

In an amended information filed immediately before trial, defendant was charged with a prior felony conviction, a violation of title 26 U.S.C., section 2591 (a) (transferring marijuana), for which he had served a term in a federal reformatory.

Defendant was conversing with a friend, Manuel Sandoval, in front of the latter’s house in San Diego on the morning of January 23, 1959. At that time several police officers began to converge on this area to arrest a burglary suspect, one Peter Rivera, who lived next door to Sandoval. As two officers approached the front of Sandoval’s house, the defendant and Sandoval ran into the house. Defendant ran through the house and back yard into an alley where Officer Gutierrez pursued the fleeing defendant thinking him to be Rivera.

Officer Gutierrez, who was in a marked police car, called to the defendant over the loudspeaker, informing him that it was the police and requesting him to stop. Defendant dodged behind a trailer and around a house where he encountered a high fence which forced him to stop his flight. During his flight, defendant carried a jacket in one of his hands. Almost immediately Officer Gutierrez and Officer Whitehead, who had observed the pursuit, arrived. Officer Gutierrez observed that this was not Rivera and asked the defendant who he was and why he had run. Defendant had a dazed expression on his face and did not answer. After repeating the question in Spanish, and after the defendant again refused to answer, Gutierrez asked the defendant if this was his coat and received an affirmative response. At that time defendant was placed under arrest and searched for weapons. A hand-rolled cigarette containing marijuana was found in a pocket of the coat. The cigarette was shown to defendant and he was asked to explain its presence in the coat. Defendant replied, “That, man, I don’t know how that roach got in there. Sandoval must have put it in there.” During a later conversation with Officer Wilson, defendant said that he did not know if anyone else had been using his coat. A chemical analysis disclosed that the cigarette contained marijuana and that debris removed from the coat pockets contained marijuana particles.