People v. Taylor

KINGSLEY, J.

Defendant was charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. Four prior narcotic offenses were also charged. A motion under section 995 of the Penal Code was made and denied. Defendant pled not guilty and denied the priors. Trial by jury was duly waived and the case was submitted on the transcript of the preliminary examination; except for the records of prior offenses, hereinafter dismissed, no additional testimony was offered or received. Defendant was found guilty as charged, all four priors were found to be true, probation was denied and he was sentenced to state prison, the term to run concurrently with the sentence on the fourth prior. He has appealed.

Defendant was on parole from state prison. His parole officer, Franklin Milner, received a phone call from a man representing himself to be a social worker, advising the parole officer that he had had contacts with defendant and suspected that he was engaged in narcotic transactions. The parole officer and his partner, M'acomber, went to defendant’s apartment, identified themselves, and sought permission to search the apartment. The search disclosed a small quantity of marijuana. On cross-examination, Milner was asked if he had shown the marijuana to defendant. His testimony was as follows:

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Q. Did you show him what you found ? A. Yes, sir.

“ Q. Did he appear to recognize it ? A. Yes, sir.

[576]

“Q. What did he say? A. He said that he had just sent a man around the corner to get this and he said that—he grabbed the box from my hand. And I asked him what was he going to do. He said he was going to roll him a cigarette and smoke one.

“Q. Did you tell him what it was you found ? A. Yes, sir.

“Q. Or did you just let him— A. Yes, sir. I asked him who it belonged to. He said he had just sent a man around the corner with three or four dollars and bought it. ’ ’

On appeal, counsel argues: (1) that the search was illegal; (2) that the admission of the statements above set forth violated the rules laid down in