People v. Alvarado

FOURT, J. This is an appeal from a judgment of conviction of possession of marijuana.

In an information filed in Los Angeles County on January 25, 1966, defendant was charged with possessing marijuana on December 5, 1965. It was further charged that on October 15, 1962, in the Superior Court in Los Angeles County, defendant had been convicted of the crime of violation of section 11500, Health and Safety Code, a felony. Defendant pleaded not guilty. In a trial without a jury, defendant was found guilty as charged. Upon motion of the prosecution the charge of the prior conviction was dismissed. Defendant was sentenced to the state prison; the sentence was suspended and defendant placed on probation, a part of the terms being that he spend one year in the county jail. The notice of appeal was timely filed.

A résumé of some of the facts is as follows:

At about 6 .-30 a.m. on December 5, 1965, Deputy Sheriffs Thatcher and Tolman, of the Los Angeles County Sheriff’s [451]Department, were on duty in the neighborhood of Cíela and Whittier Boulevard. They had previously received information with reference to a murder-robbery and a description of a suspect. Defendant and a male companion were walking westbound on Whittier Boulevard and both appeared to be in an intoxicated condition. Defendant matched the description of the man wanted for the murder-robbery offense. The officers stopped defendant and his friend for investigation. Identification was requested and defendant’s friend produced identification as to who he was. Defendant gave to the officers a social security card containing the name “Alvarado.” Thatcher noticed a large bulge in the clothing of defendant on his right side, in the area of his right coat or pants pocket. The officers had information that the weapon used in the murder-robbery was a .45 caliber automatic pistol and decided that it would be proper and advisable to search for weapons. Defendant’s friend was searched first. While that search was taking place, defendant picked up some papers which he had previously dropped and then started to walk away from the scene of activity. Defendant was brought back and Tolman began a search of defendant’s person.

The search for weapons consisted of a “pat down” accomplished by running the hands over the outside of defendant’s clothing. Tolman checked the area of the bulge in defendant’s clothing and extracted a bottle of brandy from defendant’s coat. After the bottle was taken, the officer continued with the “pat down” search and when he got to the area of defendant’s left shirt pocket, defendant pushed Tolman away and struck Thatcher with his clenched fist and then ran east on Whittier Boulevard. Defendant was apprehended within moments and was then placed under arrest for the battery on Thatcher. At the scene the search was completed. The officer felt and extracted from defendant’s left shirt pocket a small brown paper sack containing marijuana plant fragmentations and a plastic vial containing some cellophane and a partially smoked marijuana cigarette.