People v. McKinley

FOX, P. J.

In an indictment, defendant was charged in one count with violating section 11531, Health and Safety Code (selling, etc. marijuana), and in two additional counts with violating section 11501, Health and Safety Code (selling heroin). He was found guilty as charged on each count by a jury and sentenced to the state prison for the term prescribed by law on each count, the sentences, however, to run concurrently. Defendant has appealed.

[257]

Defendant was represented in the trial court by the public defender. Defendant filed his notice of appeal in propria persona. He later filed application for appointment of counsel to represent him on appeal. Since the public defender had represented defendant at the trial, this court advised him that defendant had appealed and inquired whether “in his opinion, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction” and whether his office would handle the appeal. (See Gov. Code, § 27706, subd. (a).)

The public defender replied that “in the opinion of this office there is no merit in the appeal” and therefore declined to represent defendant on the appeal.

We then examined the record and determined that appointment of counsel “would be neither advantageous to the defendant nor helpful to this court,” and therefore denied the application, notified the defendant thereof and extended his time to October 9, 1961, within which to file his opening brief.

Defendant tendered for filing a handwritten opening brief, portions of which were virtually illegible. This document was returned to defendant by the clerk of this court because of his noncomplianee with the Rules on Appeal and his attention was directed to rule 15(b) and (e), rule 40(i) and (1) and rule 46. No brief has been filed.

With respect to the count involving marijuana, Officer Johnson of the Los Angeles Police Department testified that in October 1960 he was working as an undercover narcotics agent; that he met defendant on October 26 at a doughnut shop at 5th and Main Streets in Los Angeles; that their conversation drifted around to narcotics and he said to defendant that he was looking for some “stuff.” Defendant stated, “Maybe later on I might lmow where you can get some.” As he left, Officer Johnson indicated he would be back later. He returned to the doughnut shop the next afternoon at approximately 1:30 where he again met defendant, who after some preliminary conversation, inquired if he still wanted some “stuff.” Johnson said, “Yes.” They then went to the officer’s car and defendant directed the officer to drive to 4359 Britton Avenue, where defendant introduced Johnson to Kenzy Philpot (who was a codefendant as to this count but who is not involved in this appeal). Defendant asked Philpot if he had any “pot” (marijuana), to which Philpot replied, “I have only two joints [cigarettes] now,” but he expected to get an additional supply soon because a party had already