People v. Montgomery

California Court of Appeal Oct 17, 1967 No. Crim. 2876Published

Before: Coughlin

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Holding. The court held that the evidence was sufficient to support the convictions, the admission of prior convictions was not prejudicial error, the withdrawal of the entrapment instruction was a valid tactical decision, and the Director of Corrections did not abuse his discretion in rejecting the defendant from the rehabilitation center.

Issues

Is the evidence sufficient to support the verdict?
Did the court err in admitting evidence of prior convictions?
Did the court err in failing to instruct on entrapment after defense counsel requested its omission?
Did the California Rehabilitation Center abuse its discretion in rejecting the defendant?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The extent and nature of the criminal offenses committed by a person placed in the rehabilitation center justifying the conclusion he is not a fit subject for the rehabilitation program because of excessive criminality, are matters for the director”

“Counsel was authorized to conduct the defense in the way he believed to be for the best interest of his client. His authority to withdraw from jury consideration the defense of entrapment was not dependent upon defendant’s personally expressed approval.”

COUGHLIN, J.

Defendant was convicted of two counts of selling marijuana, viz., violations of Health and Safety Code, section 11531; admitted two prior felony convictions for illegal possession of marijuana; was found to be a narcotics addict within the meaning of Welfare and Institutions Code, section 3051; was committed to the California Rehabilitation Center for treatment; subsequently was rejected by the Director of Corrections, acting through the superintendent of the center, Eor “extensive criminality”; was sentenced to imprisonment in the state prison; and appeals.

Contentions on appeal are: (1) The evidence is insufficient to support the verdict; (2) the court erred in admitting evidence of defendant’s prior convictions as a part of the prosecution’s case in chief; (3) the court erred in failing to instruct on the issue of entrapment; and (4) the California Rehabilitation Center abused its discretion in rejecting defendant as a patient.

A special deputy sheriff of the County of San Diego testified that on June 18, 1966, and July 2, 1966, defendant sold him marijuana which he, in turn, delivered to a deputy sheriff for analysis. The analysis confirmed his belief the substance purchased was marijuana. This testimony, under the circumstances of the case, is sufficient to support the convictions. Defendant’s contention to the contrary is directed to a con

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sideration of the weight of the evidence rather than its sufficiency in disregard of the controlling rule on appeal. (See

People

Newland,

15 Cal.2d 678, 681 [104 P.2d 778].)

Certified copies of defendant’s prior convictions were admitted in evidence over objection as part of the prosecution’s ease in chief. Forthwith, the court admonished the jury evidence of the prior convictions was admitted only for such bearing as it might have on the issue whether defendant “had knowledge of what marijuana is, and its narcotic character, because that’s an element of the proof of the sale of marijuana, that one must know what he is selling.” Directly in point and supporting the ruling is the decision in

People v. Montgomery

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COUGHLIN, J.

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