People v. Nelson

FORD, J.

The defendant Nelson and Virginia Marie Thomas were accused of the crime of violation of section 11530.5 of the Health and Safety Code.

1

It was further alleged that the defendant Nelson had suffered a prior conviction of the crime of violation of section 11500 of the Health and Safety Code, a felony, and had served a term of imprisonment therefor in the state prison. When the matter came on for trial, each defendant waived trial by jury. The defendant Thomas was acquitted. The defendant Nelson, who was represented by the public defender, was found guilty and the allegation as to the prior conviction of a felony was found to be true. Probation was denied. It was adjudged that the defendant Nelson be punished by imprisonment in the state prison. He has appealed from the judgment.

[361]

■A résumé of the evidence which is relevant on this appeal will be given. W. E. Loeber, Jr., a police officer for the City of Los Angeles assigned to the narcotics division, testified that about 11 o’clock on the morning of February 15, 1962, he went to an apartment building with two other police officers and an agent of the United States Customs Service. He knocked on the door of apartment 208, and the door was opened by defendant Thomas. Officer Loeber showed her his badge and said that he was a police officer. He stated that they would like to talk to her. The defendant Thomas said, “Come in.” Officer Loeber told her that the officers knew that she “and her boy friend were selling narcotics from this room.” She said that that was not true. She was then asked if she would “mind” if the officers searched the premises. She replied, “No, go ahead.”

The officers made a search of the apartment. In a cabinet in the kitchen Officer Loeber saw a brown package that appeared to be in brick form. He opened one corner of the package and ascertained that it contained a brown leafy substance.

Officer Loeber testified that there was a noise at the door while the officers were in the apartment. The officers opened the door and saw the defendant Nelson and another man in the hall. Nelson had a bag of groceries in his arms. The officers told the two men to come into the apartment. Upon inquiry being made, Nelson said that he and the defendant Thomas lived there. He was placed under arrest. On cross-examination, however, after his attention had been directed to his testimony at the preliminary examination, Officer Loeber testified that he believed that Nelson was told that he was under arrest while he was still in the hallway of the building. This occurred after he had been asked if he was “Chester” and had answered that he was. At that point in his testimony, Officer Loeber said that in talking to the defendant Thomas initially, he made reference to her “boy friend.” He further testified as follows: “Q. Where did the word ‘Chester’ come from? A. As I recall, there were letters and papers in the apartment that had the name Chester Nelson on them.” In a statement, which Officer Loeber testified was made freely and voluntarily, Nelson said that the package found by the officers in the kitchen belonged to him.