People v. Neely

GRIFFIN, P. J. Defendant-appellant was convicted by a jury of the charge of possession of marijuana in violation of section 11530, Health and Safety Code. He admitted a prior [404]conviction of section 11500 of said code. He, in propria persona, filed a notice of appeal. Defendant’s trial counsel was appointed to represent defendant on this appeal and he has reported that he is unable to find any error sufficiently prejudicial to justify a reversal. Defendant, in propria persona, makes several claims as grounds for reversal, such as disbelief of the arresting officer’s testimony, claimed prejudicial misconduct of the district attorney in mentioning defendant’s past record to the jury, claimed inconsistent statements of the officer between his testimony at the trial and that taken before the committing magistrate, and insufficiency of the evidence to warrant a conviction.

The attorney general filed a memorandum brief setting forth results of his examination of the record and he concluded that there was ample evidence to sustain the judgment and found no error justifying a reversal.

The evidence shows that about 11:50 p.m. on September 2, 1959, two police officers, in a patrol car near 30th and Imperial Avenue in San Diego, stopped at the curb to check a safe in a market. As one officer walked toward the safe, defendant dropped or threw something into the street. The officers went to the spot and found several cigarettes which one officer showed to the other officer and then placed them in his pocket. The officers then drove around the corner and returned and arrested defendant for possession of a narcotic. Defendant told the officers that he knew nothing about marijuana cigarettes. The officer had not mentioned marijuana cigarettes to him, nor had they shown the cigarettes they found to defendant. Bn route to the jail, defendant stated that he had not thrown the cigarettes but had thrown a chewing gum wrapper. Defendant was not then chewing gum. No chewing gum wrapper was later found in the area. On September 3, an officer talked to defendant in the jail and defendant claimed the clothing he was then wearing was his and that he had never had possession of any marijuana cigarettes. Upon a search of defendant’s clothing, debris was taken from his trousers and shirt which proved to be marijuana dregs. Defendant then asked the officer if he could “forget” finding the dregs in the clothing and said if he would defendant could help them or the narcotics detail quite a bit. Bach of the three hand-rolled cigarettes contained marijuana. It appears from the testimony that on April 26, 1958, this officer found defendant and others in possession of marijuana and his clothing contained marijuana debris.