People v. Smith

In an information filed by the district attorney defendants Smith, Miller, Decker and Bndley were each charged with the possession of marijuana, in violation of section 11530 of the Health and Safety Code. Bndley was also charged with a prior conviction, namely, violation of section 11500 of the Health and Safety Code. He pleaded not guilty and admitted the prior conviction. The other defendants also pleaded not guilty. Miller, however, withdrew his plea of not guilty and entered a plea of guilty. The jury found Bndley and his codefendants guilty. Bndley’s motion for a new trial was denied and he was committed to the Youth Authority for the term prescribed by law, his sentence to run concurrently with that imposed by reason of his prior conviction. Bndley has appealed from the judgment and the order denying him a new trial.

On the evening of December 12, 1959, Officers Hitchings and McMahan, of the Long Beach Police Department, received a radio dispatch relative to a loud party at Fourth and Maine Streets. The officers drove to the location in an unmarked police car, observed several persons in a house through an open door, and also saw a Chevrolet parked in front of the house which was occupied by four young men. The officers circled the block and approached the location from a different angle and observed the Chevrolet leaving with its four occupants. It proceeded east on Fourth Street at a high rate of speed. It was being driven in an erratic fashion; it would weave from the center of the street to the south curb. The car proceeded to the Long Beach Freeway where it went north. It was still traveling at a very high rate of speed and in such an erratic manner that it narrowly missed the cement dividing strip which separates the north and southbound traffic on the freeway. Shortly thereafter the vehicle left the freeway. It failed to make a boulevard stop. The officers then threw their spotlight on it. The car was soon stopped at a red traffic signal. The officers emerged from their car and approached the occupants of the Chevrolet. Officer

In a conversation at the police station with the officers, appellant stated that he knew the officers had been following his car for some time because he recognized their vehicle. He also stated, “I was thinking about taking off.” In response to the officer’s inquiry as to why he was thinking of that he replied, “I didn’t want to get rousted again.” When appellant was asked who threw the “joint” out of the rear window, appellant replied, “If anybody threw a joint out, they’re nuts, they should have eaten it.” It was the officer’s belief

Appellant denied possession of marijuana and stated he had no idea that Miller had a marijuana cigarette in his possession; he denied seeing Miller throw a cigarette out of the window or that there was any conversation about such an incident. He was driving Decker’s car because the latter was sick. He explained to the officer that he took off in a hurry from the party where the police first observed the group because there had been some trouble there. He said he had never known Decker to use marijuana. He further testified that Decker gave him some Cloréis, a gum that is green in color, the purpose of which was to enable him to get rid of the odor of beer which he had consumed. He made the statement relative to a person being crazy who would throw a cigarette out of a car instead of eating it, because of something he had seen on a TV program or a narcotic picture. He testified that he had started to run the red light when the police apprehended the group because he did not know the men approaching their car were police officers.

In seeking a reversal appellant’s sole contention is that the evidence is insufficient to support the judgment.

It must be borne in mind, in passing on the sufficiency of the evidence to sustain a conviction, that before a judgment of reversal may be had it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ].) Also, we must assume in support of the judgment the existence of every fact which the trier of fact could have reasonably deduced from the evidence, and then determine whether the facts “justify the inference of guilt.” (People v. Deysher, 2 Cal.2d 141 , 149 [ 40 P.2d 259 ].)

Applying these principles, it cannot be said, as a matter of law, that the evidence is insufficient to support the conviction of appellant. It is unmistakably clear that there was marijuana in the Chevrolet. This is demonstrated by the fact that Miller threw a marijuana cigarette out of the window; that marijuana was found in his pocket and that marijuana debris and seeds were found in the car. The jury could reasonably believe that the green leafy material be

The facts and circumstances herein referred to amply “justify the inference of guilt” that the jury drew and which the trial judge approved by denying appellant’s motion for a new trial.

The judgment and order are affirmed.

Ashburn, J., concurred.

A petition for a rehearing was denied October 4, 1960.