People v. Turner

BRAY, P. J.

Defendant was charged with two counts of violation of section 11531, Health and Safety Code (sale, furnishing or gift of marijuana). The first count charged that the act took place on or about July 11, the second count, on or about July 12. A jury found defendant guilty under the first count but not guilty under the second count. Defendant appeals from the judgment entered on conviction under the first count.

Questions Presented

1. Sufficiency of evidence.

2. Was the court required of its own motion to limit the purpose for which evidence of prior felony conviction was admitted ?

3. Was the instruction as to the elements of the offense charged erroneous ?

1.

Sufficiency of Evidence.

Henry Lopez, a state narcotic agent, and Raphael Carillo, a narcotic special employee (informant), were in the Golden Dragon Café in Salinas at about 10 p. m. Lopez testified that there they met defendant. In the conversation that ensued, defendant asked Lopez, “What do you want, man, some weed?” “Weed,” according to Lopez, means marijuana. Lopez replying affirmatively, defendant said,

[515]

“Let me see what I can do for you.” Defendant then went outside, returning in about five minutes. He stated, “There’s a man out here, he’s got one joint; you can have it for a buck. You can blast that while I try to get you some more.” Lopez gave defendant a dollar. Defendant went out of the café and on his return laid a cigarette on the table which Lopez picked up. (The cigarette contained marijuana.) Lopez’ testimony was the only evidence of the supplying of the marijuana by defendant. Carillo was not called as a witness.

Hubert Ray Sutton, another state narcotic agent, testified that on September 11 at the Golden Dragon Bar defendant told him that defendant might be able to pick up some marijuana for him, possibly five joints, for which he would have to have $5.00. Sutton gave him that amount. Defendant told him to go to a certain restaurant. There, about ten minutes later, just as defendant came through the front door, a couple of police appeared, and Sutton did not contact defendant until the next morning. At that time defendant said that he had had four joints but had sold them, and gave Sutton back his $5.00, and said that maybe later he might be able to do something for Sutton.