People v. Woolwine

258 Cal.App.2d 385 (1968) THE PEOPLE, Plaintiff and Respondent,

v.

EDWARD MILTON WOOLWINE, Defendant and Appellant.

Crim. No. 14004. California Court of Appeals. Second Dist., Div. One.

Jan. 30, 1968. Ben Plat, under appointment by the Court of Appeal, for Defendant and Appellant. [387]

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Warren H. Deering, Deputy Attorney General, for Plaintiff and Respondent.

LILLIE, J.

Pearl Dennis and defendant were charged with selling marijuana ( 11531, Health & Saf. Code); the information also alleged that defendant had suffered four prior felony convictions. The cause was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing. Defendant was convicted of possession of marijuana ( 11530, Health & Saf. Code), a lesser but necessarily included offense; Pearl was acquitted. While defendant denied the priors, the record fails to show that the trial judge made any finding thereon. Defendant appeals from the judgment and sentence.

David Baker was asked by Officer Garifo to purchase some narcotics in Fran's Tavern. Around 10:30 p.m. on March 3, 1967, Baker entered the tavern where defendant and Pearl were seated at the bar; he had seen them on previous occasions. He approached defendant and discussed buying marijuana cigarettes; they then proceeded to the washroom where they continued their conversation. Returning to the bar, they sat down and defendant handed Baker three marijuana cigarettes for which he received $1.00 from Baker. One of the marijuana cigarettes defendant took from a "pack" he had on his person; Baker did not observe from where he got the other two.

In the course of a narcotic investigation, Officers Garifo and Taylor went to Fran's Tavern around 8:30 p.m. on March 3, 1967.pearl was behind the bar; defendant entered around 10 p.m., and at 10:30 Baker came in. The officers talked with Baker about a purchase of narcotics; Officer Garifo told him he wanted him to buy narcotics for him.pearl and defendant were seated at, and had their backs to, the bar; three or four stools away sat the officers watching Baker's activities. Officer Garifo had Baker and defendant constantly in his view; once he followed them to the washroom where they discussed marijuana. When they returned to the bar Pearl opened her purse, took out two marijuana cigarettes and handed them to defendant; defendant took one marijuana cigarette from his shirt pocket, then handed all three to Baker; Baker gave defendant a dollar bill which Pearl put in her purse. Baker walked over to Officer Garifo and handed him the three marijuana cigarettes for which he gave him a dollar. Baker introduced