People v. Lewis

FOURT, J. The appeals by defendant in this case are from “the judgment and sentence and the denial of his motion for a new trial” in two separate cases, each involving a charge of possessing a narcotic (marijuana).

In our case No. 8181 the defendant, on March 14, 1960, was charged in Los Angeles County in an information with possessing a narcotic. He was found guilty as charged on April 27, 1960. On May 18, 1960, the proceedings were suspended and defendant was granted probation for three years. A part of the terms of the probation were that the defendant obey all laws.

In our case numbered 8182 the defendant was charged in an information filed in Los Angeles County on May 25, 1961, with possessing a narcotic (marijuana). It was further charged that the defendant had suffered a prior conviction of violating the provisions of section 11530, Health and Safety Code, on April 27, 1960. Defendant pleaded not guilty and denied the prior conviction. The cause was submitted upon the transcript of the testimony taken at the preliminary hearing and other evidence. Defendant was found guilty as charged and the charge of a prior conviction was found to be true. On November 14, 1961, sentence was imposed, the term to run concurrently with the sentence imposed in our case numbered 8181.

On the same date the defendant was found to be in violation of his probation granted in our case numbered 8181 and such probation theretofore granted was revoked and defendant was sentenced to the state prison for the term prescribed by law.

A résumé of some of the facts with reference to our case numbered 8182 is as follows: Officer Gilson of the Los Angeles Police Department and his fellow officer Denver were [395]patrolling the streets in the vicinity of 14th and Oxford Streets at about 5 :45 a.m. on April 29, 1961. There had been a number of vehicle thefts in that area just prior to the date and time mentioned. The officers observed a parked car with the door open on the driver’s side. The defendant was between the main body of the parked car and the open door standing in the street. He appeared to be searching in the back seat area of the automobile. The police ear was driven to a point immediately opposite the defendant, whereupon one of the officers asked the defendant where he lived and what he was doing there. The defendant then straightened up, observed the police, appeared startled and made a throwing motion as though he had thrown something to the pavement under the parked ear. No one was present at the time except the officers and defendant. Officer Denver immediately went to the point toward which the throwing motion had been made and found and picked up a wrapped cigarette and a foil-wrapped package containing white pills. There was no debris upon the street at the point where the contraband was found. The cigarette was located about one foot from the place where the defendant was standing and under the car at a point below the frame of such car. It was stipulated at the hearing that the cigarette contained marijuana. The officers thought at the time that the cigarette contained marijuana and questioned the defendant. When shown the pills and asked, “What are these?” the defendant replied, “They are bennies,” and when asked how he knew, the defendant stated that he had seen them before. When shown the cigarette he stated: “ I don’t know what it is.”