People v. Garcia

KINGSLEY, J. Defendant was charged with a violation of section 11530.5 of the Health and Safety Code (possession of marijuana for sale); a prior conviction of felony was -also charged. After a motion under section 995 of the Penal Code had been made and denied, he pled not guilty and denied the prior. Trial by jury was duly waived, he was found guilty and the prior was found to be true. Probation was denied and a state prison sentence was imposed.

The police were informed by an informant that defendant was in possession of a large quantity of marijuana. The in[343]formant was searched and given a $1.00 hill, the serial number of which was recorded. Under the observation of the officer, the informant went to the door of defendant’s residence, had a conversation with someone at the door, during which the informant appeared to hand something to that person and receive something in exchange. On the informant’s return to the officer, he had two marijuana cigarettes and told the officer that he had secured them from defendant in exchange for the bill, which defendant had placed in his wallet. The officer, with other' officers, forced an entry into the house and found the $1.00 bill in defendant’s wallet. They observed defendant drop a cardboard box. One officer asked defendant, “Do you have any weed in the house?” Defendant, pointing to the box, said: “Yes, I just dropped it there in that box.” The box contained 203 marijuana cigarettes, cigarette paper and some loose substance. A “conversation” with defendant followed, in which defendant admitted ownership of “the stuff” and that he had been selling for five months or so. Formal arrest and booking followed.

No objection was made at the trial to the introduction of the articles found nor to any of the above testimony. On this appeal, the sole point urged is that the statements made by defendant were confessions and that they were obtained in violation of the rule as set forth in People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].

I

The Attorney General urges that, since the trial was held in the summer of 1964, subsequent to the filing on June 22, 1964, of the opinion in Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], defendant’s failure to urge this point at the trial forecloses a consideration of it here.

We do not agree. We recognize that, in determining the extent to which the rule under consideration may be applied retroactively, the court has held that the determining factor is whether or not the judgment had become final before or after the date of the Escobedo opinion. (People v. Rollins (1967) 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221]; People v. Ketchel (1966) 63 Cal.2d 859 [48 Cal.Rptr. 614, 409 P.2d 694].) But that test is not necessarily the same as the test for determining whether or not a defendant must object in the trial court. The rule that a defendant may urge on appeal a ground not urged in the trial court where such ground had