People v. Nunley

HERNDON, J.

Appellant was charged in two counts with sales of marijuana in violation of section 11531 of the Health and Safety Code. He was further charged with two prior felony convictions, to wit, burglary in 1956 and a violation of section 11500 of the Health and Safety Code in 1958. He entered a plea of not guilty but admitted the two prior felony convictions. The trial was before the court without a jury.

Pound guilty on both counts, appellant now appeals from the judgment of conviction and from the order denying his motion for a new trial.

In the trial court appellant was represented by the public defender. He has taken this appeal in propria persona. He advances two contentions: (1) that the evidence is insufficient to support the judgment and (2) that the trial court failed to give him the benefit of the presumption of innocence.

Officer Orville Johnson testified that on April 4, 1960, he was working in Los Angeles as an undercover officer and that he had with him an informer named Mitchell. The officer positively identified appellant as the person from whom he made a purchase of marijuana at about 12 o’clock noon on

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April 4, 1960. The officer’s description of the transaction involved in the first count of the indictment was substantially as follows:

Mitchell and Officer Johnson were seated in a parked car at the intersection of 41st Street and Central Avenue. Around noon appellant approached the car and Mitchell inquired of him whether he could get them “a half of can of weed.” Appellant answered affirmatively and stated that the cost would be seven dollars. Johnson said “okay,” whereupon appellant entered the car. The three men then drove down Central Avenue to Santa Barbara Boulevard where appellant left the car to make a telephone call. After appellant completed his call, he got back into the car and they drove to Ascot Avenue. The officer parked the car and handed appellant a five-dollar bill and two one-dollar bills. Appellant left the car and, after an absence of a few minutes, returned with a package which he handed to Mitchell. Mitchell in turn handed the package to Johnson. Appellant was then taken back to 41st and Central where the men separated.