People v. Estany

JEFFERSON, J.—

In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of section 11500 of the Health and Safety Code, possession of marijuana. Defendant entered a plea of not

[610]

guilty. Trial was by the court, trial by jury having been duly waived by defendant personally and all counsel. Pursuant to stipulation of defendant and all counsel, the cause was submitted to the court on the testimony contained in the transcript of the proceedings had at the preliminary hearing and the evidence adduced at that hearing. The judge indicated for the record that he had read and considered the evidence produced at the preliminary hearing. No additional evidence was offered and the matter was submitted to the court for decision. Defendant was found guilty as charged, and a probation report was ordered. Probation was denied and defendant sentenced to state prison for the term prescribed by law.

On November 11, 1961, Donald B. Brewer, an agent of the State Bureau of Narcotic Enforcement, assisted by three other law enforcement officers, staked out at 446 West 93rd Street where, according to information received by them, defendant resided and was in possession of marijuana. That afternoon they observed defendant come down the stairs of that address and walk along the driveway toward the. street. It was observed that defendant was carrying a folded newspaper. As Agent Brewer approached, defendant apparently observed him and began to walk in a rapid manner toward the rear of the premises. Agent Brewer identified himself as a law enforcement officer and apprehended defendant. • Brewer asked, ‘ ‘ What do you have there, marijuana ? ’ ’ Defendant responded by handing him the folded newspaper which covered three small paper sacks. Brewer inspected the sacks which were found to contain a green, leafy material resembling marijuana. He asked defendant if this was his marijuana, and defendant replied, “Yes, that is my marijuana.” He was asked-where he obtained it, and he answered that he had it all along—that he bought it in the market. He was then asked if he had been selling marijuana to which he replied, “No, I just smoke it.”

Agent Brewer took defendant upstairs to his apartment and knocked at the door. Henry Perez opened the door and identified himself as defendant’s roommate. He was advised that defendant was under arrest, and Agent Brewer asked if he could come in and look around. Perez opened the door, and Agent Brewer entered with defendant. Agent Brewer examined a suitcase which was found to contain some debris of a leafy material. Defendant admitted that the suitcase belonged to him.