People v. Ludlum

KINGSLEY, J.

Defendant was charged by information with a violation of section 11530 of the Health and Safety Code (possession of marijuana). A motion to dismiss under section 995 of the Penal Code was made and denied. He pled not guilty and after trial by a jury, he was found guilty. A motion for new trial was made and denied, and defendant was sentenced to one year in the county jail, which sentence was suspended and probation was granted. He has appealed from the judgment (order granting probation). (Pen. Code, § 1237, subd. 1.)

The testimony for the People was as follows:

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About 3 a.m., Officer Davis, who was in plain clothes and acting as an undercover officer, observed defendant leave a pizza restaurant on the Venice Beach, cross the boardwalk and approach his auto in a parking lot. After defendant entered his car, and while the officer was about 5 feet away on the driver’s side, the officer observed defendant take a paper napkin from his pocket. In the officer’s words:

“He took a napkin and opened it up and appeared to look at the contents.

“I observed two handrolled cigarettes within the napkin. At this time he opened the left door with his left hand, and threw the articles out on the ground. ”

The articles lit about 3 feet from the left side of the ear. Keeping the napkin under constant observation, the officer walked in back of defendant’s car for a short distance and gave a prearranged signal to officers in a police car which had arrived at the parking lot. Officer Bach, from the police car, approached Officer Davis, pretended to shake him down for weapons and to interrogate him. Officer Davis told Officer Bach what he had seen and, while Officer Davis observed him, Officer Bach walked to the napkin, picked it up and returned to Officer Davis. The two officers examined the contents and concluded that they were handrolled marijuana cigarettes.

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Again, in Officer Davis’ words:

“At this time I suggested that I be placed under a feigned arrest situation.

“I was handcuffed and placed in the rear of the unmarked police vehicle. After that I believe Officers Tudor and Bach stopped Mr. Ludlum when his vehicle was adjacent to the police vehicle.