People v. Simons

[84]

KAUFMAN, P. J.

Convicted by a jury of possession of narcotics, in violation of section 11500 of the Health and Safety Code, defendant appeals from the judgment of conviction and from the order denying his motion for a new trial. He argues that the judgment must be reversed because the narcotics were obtained by an unlawful search and seizure.

We turn first to the appeal from the order denying the motion for a new trial. The record indicates that the notice of appeal was filed on November 24, 1961, after the effective date [September 15, 1961] of the 1961 amendment to section 1237 of the Penal Code, which abolished the appeal from an order denying a motion for a new trial in criminal cases, except in special circumstances not applicable here. Therefore, the purported appeal from the order denying the motion for a new trial must be dismissed as an appeal from a nonappealable order

(People

v.

Britton,

205 Cal.App.2d 561 [22 Cal.Rptr. 921]).

The record reveals the following facts: On Friday, August 18, 1960, at about sundown, the defendant, who was driving to Los Angeles with a male companion, had mechanical difficulties with his Volvo automobile 3 or 4 miles south of San Ardo in Monterey County. He parked the car on the side of the highway and flagged down a passing Texaco truck driven by Gerald Johnson.

Johnson, after refusing defendant’s offer of $20 to tow him to Paso Robles, because it was against company rules, agreed to take the defendant to San Ardo for a mechanic. The defendant was very excited and nervous but not drun

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the defendant’s rapid conversation did not make much sense, and he fidgeted so much that Johnson began to doubt whether he should have given the defendant a ride. Johnson left the defendant at a Shell service station in San Ardo, after telling the mechanic, Conner, that the defendant was acting odd and was highly excited.

Conner and the defendant drove out to the Volvo. Before leaving, Conner telephoned his employer, Kearns, at home. Kearns indicated he would drive directly out to the Volvo. The defendant told Conner he was a male nurse and was looking for work, was on his way to Los Angeles, but would do field work if any was available.