People v. Perez

ASHBURN, J.

Defendant Andrew Castulo Perez was convicted after trial by the court of possession of marijuana in violation of section 11530 of the Health and Safety Code. Defendant was also found to have been convicted of a prior felony—violation of section 11500 of the Health and Safety Code.

The ease was submitted on the preliminary transcript with each side offering additional evidence. A motion for new trial was denied, as was probation. Defendant appeals from the judgment and from order denying new trial.

Two claims of error are advanced by the defendant, namely, (1) that the arrest was illegal and evidence obtained thereby was improperly admitted, and (2) insufficiency of the evidence.

“Viewing the evidence most favorably to respondent’s ease and remembering that the trial judge ‘could have accepted portions of defendant’s testimony and statements, disbelieved other portions’

(People

v.

Matlock,

51 Cal.2d 682, 695 [336 P.2d 505]), the facts are as follows.”

(People

v.

Amos,

190 Cal.App.2d 384, 387 [11 Cal.Rptr. 834].)

On February 16, 1961, deputy sheriffs for the County of Los Angeles saw the defendant- seated in the next to last seat of the right rear of a public bus. No one was seated

[438]

near him; the only person on the bus other than defendant and the bus driver was seated “up forward of the rear door.” The officers had received information from defendant’s wife that defendant had a pistol and they were looking for it. They had no description of defendant but did have information as to the clothes he wore and that he was on the back of the bus. It was stopped at a bus stop as the officers pulled up behind it with their red light and siren on.

Before the officers entered the bus Deputy Westhoff, standing next to the window by defendant, saw him lean forward and make an underhanded throwing motion. At this time Westhoff was about a foot from defendant. Westhoff’s partner directed the driver to open the door and one of the officers stepped inside and had defendant get off the bus. Defendant was searched for weapons and then an officer checked the area where he had been sitting. He found a packet of 20 handwrapped cigarettes on the inside wheel housing just in front of defendant’s seat. On cross-examination, when asked if this was the 17th of February, Deputy Westhoff said yes. It was dark. The time was approximately 8 :45 p.m.