People v. Lovio

FOURT, J.

This is an appeal from a judgment of conviction of violating section 11530, Health and Safety Code (possession of marijuana).

In an information filed in Los Angeles County on February 20, 1962, appellant was charged with four codefendants with possessing marijuana on January 13, 1962. A prior conviction of a felony was charged against appellant and he pleaded not guilty and denied the truth of the allegation with reference to the prior conviction. A jury trial was waived and appellant was found guilty as charged and the allegation with reference to the prior felony conviction was found to be true. The appeal is from “the judgment and sentence” “and from the denial of the defendant’s motion for a new trial.” The last mentioned motion is nonappealable (Pen. Code, § 1237).

A résumé of some of the facts is as follows: Officers Dorris and Salazar of the Los Angeles County Sheriff’s Office were patroling about 4 a.m., January 13, 1962, in the 500 block of Sadler Avenue where they observed a parked automobile. One of the doors of the observed car was open and a man was standing next to it. Another man was getting out of the car. The high beam lights on the police car were turned on in order that the officers could see better and as this was done two men ran across the street. The police car was then stopped, the overhead red light was turned on and one of the officers called out to the men who were running to stop. One of the men, Roybal, stopped and the other, Ochoa, continued running onto the porch of the house at 516 Sadler Avenue, it being the house directly across the street from where the observed car was parked.

Officer Dorris ran toward the porch. Ochoa took an object out of his jacket and threw it over the side of the porch to the ground. Dorris ran onto the porch where Ochoa had been and with the aid of a flashlight saw three brown rolled paper cigarettes upon the ground. Ochoa was placed under arrest. Tte door to the house was opened by one of the Contreras who occupied the place and when the officers were observed the door was immediately closed. Dorris retrieved the cigarettes thrown upon the ground by Ochoa and returned to the vicinity of the police car with Ochoa. Roybal also was placed under arrest.

[81]

During the time Dorris was chasing Ochoa, Officer Salazar had crossed the street to the parked automobile from which Ochoa and Roybal had run. With the aid of a flashlight, Salazar observed Fred Barela in the driver’s seat of the parked car and appellant on the passenger’s side. A tinfoil package was on the seat between them with what resembled marijuana cigarettes in it. Salazar ordered the men out of the parked automobile. At the rear of the car the deputy requested some identification and Barela produced a driver’s license. Appellant began searching in his pockets and produced a wax paper package which he dropped to the ground. Salazar picked it up and observed that it contained what appeared to be marijuana. The officer picked up two cigarettes from the front seat of the parked car. Assistance from other officers was requested and such assistance soon arrived.