People v. Konkel

FOURT, J. This is an appeal from a judgment of conviction of possessing narcotics.

[633]In an information filed in Los Angeles on July 1, 1965, defendant was charged in count I with having in his possession for sale marijuana on January 27, 1965, in violation of section 1153Q.5, Health and Safety Code; in count II with having heroin in his possession on January 27, 1965, in violation of section 11500, Health and Safety Code. A jury trial was waived and it was stipulated that the cause be submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing, and that all exhibits received at the preliminary hearing be deemed received into evidence, subject to the trial court’s rulings. Defendant was found guilty as charged. The criminal proceedings were adjourned as it appeared that defendant was addicted, or, by reason of repeated use of narcotics, was in imminent danger of becoming addicted to narcotics. It was ordered on November 17, 1965, that a proper petition under the circumstances be filed and heard. The defendant was found to be not acceptable to the program of the California Rehabilitation Center and its case numbered MDA 5052 was ordered dismissed. Defendant’s criminal proceedings were reinstated and he was sentenced to the state prison on each count for the term prescribed by law. A timely notice of appeal was filed. While defendant was out on bail in the case presently before the court, he was again arrested for possessing marijuana and pleaded guilty to that charge.

A résumé of some of the facts is as follows; On and before January 27, 1965. Officer Destelle of the narcotics division of the Los Angeles Police Department received complaints from a citizen who resided in the area close by 11043 Cohasset Street, North Hollywood, to the effect that narcotics were being dispensed from the above named address. The ■ citizen had observed the defendant make hand-to-hand transactions with people on the front porch of the premises and at different times had observed him go underneath a parked automobile. Officer Destelle, with Officer Van Court of the same department and division, went to the area of the address at about 2 p.m. on January 27, 1965, to engage in an investigation. The officers met and talked with three citizens at or near the location. The officers were shown some growing ivy on a fence across the street from the house in question. In the ivy. was a bottle with a board on top of it. The officers examined the bottle and its contents. Among other things the bottle contained several multicolored capsules and a marijuana roach. The officers placed the items back in the bottle, replaced