People v. Howard

VAN DYKE, P. J.

This is an appeal from a judgment of conviction of unlawful possession of narcotics. Appellant also noticed an appeal from an order denying a motion for a new trial but this purported appeal must be dismissed as no motion for a new trial was made.

At appellant’s request, this court appointed James A. Guaico, Esquire, an experienced member of the bar, to represent appellant upon this appeal. Mr. Guaico has reported that a careful review and study of the record disclosed no meritorious ground of appeal. However, appellant, being dissatisfied with the advice of counsel, has filed a brief wherein he asserts that the evidence upon which he was convicted was illegally obtained, that the district attorney was guilty of prejudicial misconduct, and that he was deprived of the effective aid of counsel. We have made an independent study of the record to determine the validity of appellant’s contentions.

In the early morning hours of February 2,1956, two officers of the Stockton Police Department went to appellant’s apartment where they had been informed an illegal sale of narcotics had been made on the preceding evening, presumably by one Salvador Meza. Appellant answered the door. When the officers inquired for Mr. Meza, appellant either denied knowing him or advised that he was not there. In any event, the officers departed but returned within a short time with a photograph of Mr. Meza which they showed to appellant, who

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acknowledged that he recognized it as a picture of his friend “Sal” or “Sol.” The officers then entered and searched the apartment. There, they found marijuana. It is admitted that the officers had no search warrant, and there is a conflict in the evidence as to whether they “walked” in without objection on the part of appellant or whether he “invited” them to enter and search. On appeal this conflict must be resolved against appellant. In any event, no objection was made at the trial to the admission into evidence of the marijuana found in appellant’s apartment. The objection thereto cannot be raised for the first time on appeal.

(People

v.

Kitchens,