People v. Reynolds

[1018]Opinion

KINGSLEY, Acting P. J. Defendant was charged with, and after a trial by the court (trial by jury having been duly waived) was found guilty of possession of marijuana for sale, in violation of section 11359 of the Health and Safety Code. He has appealed; we reverse the conviction with directions.

Acting on a tip that a man named Billy Connors was selling marijuana from a certain address, the police sent a known confidential informant to that address. The informant succeeded in buying marijuana from “Billy. ” He told the police that another man, described as “a male Negro [sic] with black hair, five-feet-three to six inches tall, weighing 135 to 145 pounds, 17 to 21 years old,” had been present and had participated in the transaction. Acting on that information, the police secured a warrant for the search of the premises of Billy Connors and of the other person. Arriving at the premises, they found the door open but a screen door locked. The officers saw a man (later identified as Gregory Dawson) and defendant seated in the room. When the officers announced their errand, defendant, holding a large, clear, plastic bag, hurriedly left the room. Dawson admitted the officers. Search of the person disclosed two small baggies of marijuana on Dawson and three small baggies of marijuana in defendant’s pocket. Search of the premises resulted in finding the large plastic bag hidden in the kitchen.

Defendant testified that he was a cousin of Billy Connors, and had gone to Connors’ residence to buy marijuana. Connors was not there but Dawson was. He testified that Dawson had given him the large plastic bag, telling him to select the three baggies he wanted; that defendant had done so and was simply holding the plastic bag to return it to Dawson when the police arrived.

Three times, defendant moved to be given the identity of the informant on whose “buy” the warrant had been issued. The motions were denied. That denial is the sole issue raised on this appeal. We conclude that the motion should have been granted.

The People do not contend that the three baggies found on defendant’s person were a large enough quantity to support a conviction of possession for sale; it is not contested that the marijuana found in the large plastic bag was sufficient for that purpose. The factual issue for the trial court was whether his possession of that larger bag was possession for sale.