People v. Kelley

FILES, P. J.

Defendant was charged by information with the offense of possession of marijuana in violation of Health and Safety Code section 11530. Defendant personally and his

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attorney stipulated with the district attorney to submit the case to the trial court on the transcript of the preliminary examination. The court found defendant guilty as charged, and he is appealing from the judgment. The notice of appeal also refers to the order denying a new trial, which is not separately appealable. (Pen. Code, § 1237.)

When defendant was searched in the course of the customary booking process at the Ventura police station following his arrest for an unrelated offense, marijuana was found in a sandwich bag which was carried inside defendant’s trousers. The bag and its contents were inspected by the trial judge, who announced that the quantity was sufficient to be smoked. There is nothing in the record here to east doubt upon the correctness of that finding.

Defendant contends on appeal that the discovery of the contraband was the result of an illegal arrest and therefore it should not have been received in evidence against him. There was no objection to any of the evidence, and no motion to strike any of it. Ordinarily, absent such an objection or motion, the issue cannot be raised in the appellate court.

(People

v.

Flores,

68 Cal.2d 563, 567 [68 Cal.Rptr. 161, 440 P.2d 233].)

In the case at bench, after counsel for both sides had argued, the trial judge orally analyzed the evidence and expressed his reasons for concluding that the arrest was not unlawful. Apparently the trial court had permitted counsel to raise that issue for the first time in their arguments, which were not reported. Inasmuch as the trial court did consider and rule upon the issue, this court will also consider it.

At about 11:30 p.m. on July 2, 1966, Officer Hill, on patrol, received a radio message to the effect that there had been a possible theft from a gasoline station and that the car involved, a maroon 1956 Chevrolet, almost ran over the attendant when leaving the station. A few moments later Hill saw the Chevrolet, traveling about 40 miles per hour. The license number corresponded with that in the report from the station. Officer Hill pursued in his patrol car, using his red light. The Chevrolet increased speed to 60 miles per hour, but eventually stopped. The driver, Tevebaugh, stepped out of the Chevrolet, ran back to the police ear and volunteered “