People v. Montgomery

• Decision Date: 17 October 1967
• Docket Number: Cr. 2876
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Meryon MONTGOMERY, Defendant and Appellant.

Page 895

62 Cal.Rptr. 895

255 Cal.App.2d 127

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Meryon MONTGOMERY, Defendant and Appellant.

Cr. 2876.

Court of Appeal, Fourth District, Division 1, California.

Oct. 17, 1967.

Hearing Denied Dec. 13, 1967.

Richard E. Adams, San Diego, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Los Angeles, William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

COUGHLIN, Associate Justice.

Defendant was convicted of two counts of selling marijuana, viz., violations of Health & Safety Code § 11531; admitted two prior felony convictions for illegal possession of marijuana; was found to be a narcotics addict within the meaning of Welfare & Institutions Code § 3051; was committed to the California Rehabilitation Center for treatment; subsequently was rejected by the Director of Corrections, acting through the superintendent of the center, for 'extensive criminality'; was sentenced to imprisonment in the state prison; and appeals.

Contentions on appeal are: (1) The evidence is insufficient to support the verdict; (2) the court erred in admitting evidence of defendant's prior convictions as a part of the prosecution's case in chief; (3) the court erred in failing to instruct on the issue of entrapment; and (4) the California Rehabilitation Center abused its discretion in rejecting defendant as a patient.

A special deputy sheriff of the County of San Diego testified that on June 18, 1966 and July 2, 1966 defendant sold him marijuana which he, in turn, delivered to a deputy sheriff for analysis. The analysis confirmed his belief the substance purchased was marijuana. This testimony, under the circumstances of the case, is sufficient to support the convictions. Defendant's contention to the contrary is directed to a consideration of the weight of the evidence rather than its sufficiency in disregard of the controlling rule on appeal. (See People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)

Certified copies of defendant's prior convictions were admitted in evidence over objection as part of the prosecution's case in chief. Forthwith, the court admonished the jury evidence of the prior convictions was admitted only for such bearing as it might have on the issue whether defendant 'had knowledge of what marijuana is, and its narcotic character, because that's an element of the proof of the sale of marijuana, that one must know what he is selling.' Directly in point and supporting the ruling is the decision in People v. Leyva, 187 Cal.App.2d 249, 254, 9 Cal.Rptr. 469. (In accord see People v. Posada, 198 Cal.App.2d 535, 540, 17 Cal.Rptr. 858; People v. Horn, 187 Cal.App.2d 68, 75, 9 Cal.Rptr. 578.) Furthermore, any error in the premises was not prejudicial as defendant became a witness in the case; denied any participation in the sales with which he was charged; and on cross-examination admitted his conviction of the two prior felonies. (People v. Lugo, 220 Cal.App.2d 54, 60, 33 Cal.Rptr. 572.)

Defendant and witnesses called by him, testified to facts supporting an alibi defense. The prosecution's case in chief supplied evidence material to the defense of entrapment. After all parties rested, counsel for defendant and the court engaged in a discussion respecting the advisability of giving instructions upon the issue of entrapment which culminated in a request by the former that such instructions not be given. The court granted the request and acted accordingly. This was a tactical maneuver by the defense amounting to a withdrawal of the issue of entrapment. On appeal, defendant contends the court should have given the entrapment instructions on its own motion; the request to omit such by defendant's counsel was not effective because not expressly approved by defendant; and failure to give the instructions was error. There is no merit to this contention. Counsel was authorized to conduct the defense in the way he believed to be for the best interest of his client. His authority to withdraw from jury consideration the defense of entrapment was not dependent upon defendant's personally expressed approval. Even assuming error, it was invited by defendant and he may not take advantage thereof on appeal. (People v. Phillips, 64 Cal.2d 574, 580, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Jones, 232 Cal.App.2d 379, 309, 42 Cal.Rptr. 714.)

When defendant was returned from the rehabilitation center upon rejection by the superintendent, he and his counsel were personally present and participated in proceedings incident to pronouncement of judgment. At this time defense counsel contended the superintendent abused his discretion in rejecting defendant. The report from the rehabilitation center indicated the reason for rejection was defendant's criminal record and referred to a prior sale of marijuana. The prior convictions were for possession and not for sale. Counsel claimed the decision of the superintendent was based on misinformation respecting the prior offenses and urged the court to reject it upon this ground. Following an extended discussion between the trial judge and counsel, in which each expressed his views respecting pertinent subjects, including the authority of the trial judge to review the decision of the superintendent, the court remanded the matter to the rehabilitation center for further consideration and clarification, and ordered a transcript of the foregoing...