People v. Davis

JEFFERSON, J.

JIn an amended information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of possession of a narcotic, heroin, in violation of section 11500 of the Health and Safety Code. The amended information alleged three prior felony convictions, to wit, forgery on May 8, 1950, violation of section 11500 of the Health and Safety Code on December 30, 1953, and violation of section 11500 of the Health and Safety Code on June 28, 1957. Defendant entered a plea of not guilty and denied the prior convictions. Trial was by the court. Defendant personally and all counsel waived trial by jury.

Defendant was found guilty and the priors were found to be true. A probation report was ordered. Defendant’s motion for a new trial was denied, probation was denied and defendant was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment and orders denying his motion for a new trial and probation.

Appellant, although represented by counsel at the trial, originally appeared herein in propria persona and filed both an opening and reply brief. Thereafter, at his request, Gerald D. Lenoir was substituted as counsel for defendant. Counsel advised the court that he had reviewed the file and was unable to raise any points not raised in the briefs filed by appellant, and therefore, elected to stand on those briefs. Counsel did appear (through an associate) at the hearing of the appeal and presented oral argument in support of the contentions hereinafter discussed.

The facts appear as follows: Police Officer J. F. Aguirre testified that on March 5, 1962, as a narcotics investigator, he was on a “stake-out” at 11819 Robin Street, in Los Angeles, investigating reported narcotics activities at that address. He observed Mary Ballard and Kenneth Douthit leave that location. He and his partner Sergeant Edward Sanchez followed them to a motel located at 405 East Imperial Boulevard. The two persons left their car and went to room No. 5 of the motel. The two officers positioned themselves outside

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and waited. At approximately 11 a.m. Officer Aguirre saw a person, known to him as Walter Morris, whom he had in the past arrested for a narcotics violation, enter and leave room No. 5. At approximately 11:30 a.m. the door to the room was opened and Mary Ballard and Kenneth Douthit began to leave. The officers approached them, identifying themselves as police officers and stated that they were investigating narcotics activities and wanted to talk to them. Mary told the officers, “We aren’t messing around with any stuff — if you want to, come in and look around.” She then stepped back into the room and the two officers entered. Officer Aguirre was the first to enter at which time he saw defendant Davis. He observed defendant put his right hand into his right trouser pocket, draw it out, and take three hurried steps toward a doorway leading into a bathroom. The officer stopped him and asked him what he had in his hand. Defendant handed the officer a newspaper with a narcotic outfit wrapped up in it. Defendant was then placed under arrest, along with Mary Ballard and Kenneth Douthit, and searched. Two yellow balloons were found in a pocket in defendant’s trousers, which contained a white powdery substance resembling heroin. The officer asked defendant how much stuff (heroin) he had. Defendant replied, “Not too much.” Defendant was then asked, “Whose outfit is this?” He answered, “It’s, mine. It belongs to me.” The officer asked defendant, “Do the other people in the room know anything about this stuff you have in your possession?” (Referring to the narcotics.) Defendant answered, “No, they don’t know anything about it. I had it myself, and they didn’t know I had it.” In a later conversation with defendant in the police administration building, defendant stated the narcotics found were for his own use and that he had had his last fix the night before.