People v. Boddie

California Court of Appeal Jun 27, 1969 No. Crim. 15148Published

Before: Schweitzer

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Holding. The court held that there was insufficient evidence to support a conviction for possession of narcotics where the defendant was merely a passenger in a vehicle containing drugs, as the prosecution failed to prove the defendant had knowledge of the narcotics' presence.

Issues

Whether there was sufficient evidence to sustain a conviction for possession of narcotics.
Whether the search of the vehicle was lawful as incident to an arrest.
Whether the trial court erred in denying the defendant's motion to replace the public defender with private counsel.

Disposition. Affirmed in part, reversed in part, and dismissed in part.

Quotations verified verbatim against the opinion

“We conclude that there was insufficient evidence, direct and circumstantial, to establish that defendant had knowledge of the presence of the narcotics, an essential element to the charge of possession.”

“The search which followed the arrests was proper as being incidental to a lawful arrest.”

“The provisions of the Constitution are satisfied by the appointment of the public defender to represent a defendant; he was not entitled to have private counsel represent him.”

SCHWEITZER, J.

Defendant was charged with possession of heroin (Health & Saf. Code, § 11500), and being under the influence of a narcotic (Health & Saf. Code, § 11721). Trial by jury was waived. After a nonjury trial, the court found defendant guilty as charged, suspended proceedings without imposition of sentence, and placed defendant on probation under certain conditions. This appeal is from the judgment (order granting probation) and the order denying the motion for a new trial, defendant contending that there was insufficient evidence to sustain his conviction on the charge of possession. The order denying the motion for new trial is not appealable and will be dismissed. (Pen. Code, § 1237.)

On September 2, 1967 at approximately 11:15 p.m. Police Officer Mettler observed one Lowe erratically driving on Central Avenue, swerving from the northbound to the southbound lane and back. Defendant was a passenger in the vehicle. The officer stopped the vehicle. Lowe was asked for his driver’s license and after fumbling through his pockets, said: “they’re in the glove compartment of the vehicle." He moved to the passenger side of the vehicle, telling defendant to get out of the car. Lowe attempted to open the glove compartment but it would not open. He then reached under the right front seat, obtained two yellow balloons, placed them in his mouth and swallowed them. He was placed under arrest and handcuffed. Defendant was then standing on the sidewalk, obviously swaying. He was also arrested and handcuffed. The vehicle was searched. A balloon was found containing a small portion of a white powdery substance. It was stipulated a.t trial that the contents of the balloon contained heroin.

Defendant and Lowe were taken to the Narcotics Bureau, Los Angeles Police Department. Officer Fesler, an expert in the field of narcotics, examined each man. He testified each was under the influence of a narcotic, probably heroin, and defendant had approximately 13 fresh scab formations on his arm, one puncture having fresh dried blood on it.

It was stipulated that the owner of the car was in custody at the time of trial, was awaiting trial on unrelated charges of sale and possession of heroin, and that if called as a witness, he would testify that he had loaned the car to Lowe about an hour prior to the arrests.

[411]

People v. Boddie

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SCHWEITZER, J.

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