People v. Foster

LILLIE, J.

—By information defendant was charged with possession of marijuana in violation of section 11530, Health and Safety Code; a jury found him guilty. His motion for a new trial was denied and he was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment and order denying motion for a new trial. The appeal from the order is dismissed. (§ 1237, Pen. Code;

People

v.

Ing,

65 Cal.2d 603, 614 [55 Cal.Rptr. 902, 422 P.2d 590].)

On April 15, 1966, around 2:20 a.m., Officer Corbett, on a burglary stake-out, after observing defendant’s suspicious conduct, attempted to apprehend him in his automobile after identifying himself and requesting defendant to pull to the curb; defendant looked at the officer and-started speeding down Sunset Boulevard; a chase with siren and- spotlight ensued during which the officer observed'him extend'- his left-arm out of the driver !s .window and. throw a. bottle containing marijuana over the roof; of the car. onto.-.the lawn uf-a house;upon defendant’s arrest a search of his'pants'pocket revealed some zig-zag papers.

[86]

Appellant’s sole contention is that section 11530, Health and Safety Code, does not properly describe a crime and that a violation of the provisions thereof, either by act or omission, is not punishable because the “possession of a narcotic” is not an act proscribed by the Penal Code; that Penal Code, section 6, forbids punishment for criminal acts except as prescribed or authorized by the Penal Code.

The Penal Code became effective in 1873; it contained section 6

1

which remains in effect today. The Legislature captioned the section “Effect of Code Upon Past Offenses”; and by its own terms section 6 was intended to affect only past offenses. All it says is that after 12 o’clock noon on January 1, 1873, the only acts cognizable as crimes in California are those defined in the Penal Code and the statutes which were specifically preserved by it and in those municipal, county or township ordinances in force at that time. Penal Code, section 23, which enumerated the statutes ‘1 continuing in force” referred to in section 6, was repealed in 1959, leaving no such statutes in effect. Thus, if we give validity to appellant’s contention contrary to legislative intent, the result would be a removal from the list of crimes in California any not set forth in the Penal Code, and an invalidation of all city and county ordinances having criminal sanctions passed after January 1,1873.