People v. Nelson

• Decision Date: 17 July 1963
• Docket Number: Cr. 8539
• Citation: People v. Nelson, 32 Cal.Rptr. 675, 218 Cal.App.2d 359 (Cal. App. 1963)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Chester NELSON, Defendant and Appellant.

Page 675

32 Cal.Rptr. 675

218 Cal.App.2d 359

The PEOPLE, Plaintiff and Respondent, v. Chester NELSON, Defendant and Appellant.

Cr. 8539.

District Court of Appeal, Second District, Division 3, California.

July 17, 1963.

David Daar, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Lawrence R. Tapper, Deputy Atty. Gen., for respondent.

FORD, Justice.

The defendant Nelson and Virginia Marie Thomas were accused of the crime of violation of section 11530.5 of the Health and Safety Code. ¹ It was further alleged that the defendant Nelson had suffered a prior conviction of the crime of violation of section 11500 of the Health and Safety Code, a felony, and had served a term of imprisonment therefor in the state prison. When the matter came on for trial, each defendant waived trial by jury. The defendant Thomas was acquitted. The defendant Nelson, who was represented by the public defender, was found guilty and the allegation as to the prior conviction of a felony was found to be true. Probation was denied. It was adjudged that the defendant Nelson be punished by imprisonment in the state prison. He has appealed from the judgment.

A resume of the evidence which is relevant on this appeal will be given. W. E. Loeber, Jr., a police officer for the City of Los Angeles assigned to the narcotics division, testified that about 11 o'clock on the morning of February 15, 1962, he went to an apartment building with two other police officers and an agent of the United States Customs Service. He knocked on the door of apartment 208, and the door was opened by defendant Thomas. Officer Loeber showed her his badge and said that he was a police officer. He stated that they would like to talk to her. The defendant Thomas said, 'Come in.' Officer Loeber told her that the officers knew that she 'and her boy friend were selling narcotics from this room.' She said that that was not true. She was then asked if she would 'mind' if the officers searched the premises. She replied, 'No, go ahead.'

The officers made a search of the apartment. In a cabinet in the kitchen Officer Loeber saw a brown package that appeared to be in brick form. He opened one corner of the package and ascertained that it contained a brown leafy substance.

Officer Loeber testified that there was a noise at the door while the officers were in the apartment. The officers opened the door and saw the defendant Nelson and another man in the hall. Nelson had a bag of groceries in his arms. The officers told the two men to come into the apartment. Upon inquiry being made, Nelson said that he and the defendant Thomas lived there. He was placed under arrest. On cross-examination, however, after his attention had been directed to his testimony at the preliminary examination, Officer Loeber testified that he believed that Nelson was told that he was under arrest while he was still in the hallway of the building. This occurred after he had been asked if he was 'Chester' and had answered that he was. At that point in his testimony, Officer Loeber said that in talking to the defendant Thomas initially, he made reference to her 'boy friend.' He further testified as follows: 'Q. Where did the word 'Chester' come from? A. As I recall, there were letters and papers in the apartment that had the name Chester Nelson on them.' In a statement, which Officer Loeber testified was made freely and voluntarily, Nelson said that the package found by the officers in the kitchen belonged to him.

Further statements were freely and voluntarily made by the defendant Nelson at the police building. He said that the kilo brick of marijuana and the other items were what remained of 37 pounds that had been buried for some time. He took the marijuana from its hiding place and began to 'deal it off' to a few friends in can and half-can amounts. Officer Loeber testified that marijuana in the form of a brick such as he found is called a 'kilo brick' and that packing marijuana in that manner 'is a common method used by a wholesaler in selling marijuana to a retailer, or a subseller.' He further testified as follows: 'A can is a quantity of marijuana equal approximately to that amount which could be put into the standard size tobacco can or Prince Albert can is a more familiar term, and this is used as a measuring device.'

It was stipulated that William King was an expert forensic chemist and that it could be deemed that he had testified that he had examined the material which was in brick form and had arrived at the opinion that it was marijuana.

The defendant Thomas testified in her own behalf. She stated that she did not know that the marijuana was in the apartment at the time when the officers found it. Nelson had rented the apartment about two months before the arrest, and she had moved in with him at that time. The marijuana did not belong to her.

The defendant Nelson testified in his own behalf. He said that any marijuana which the officers found in the apartment did not belong to him. He did not know that any marijuana was there. He also testified that he had moved out of the apartment in January 1962. Some of his clothes and other property, however, were still there.

The defendant Nelson complains that both at the preliminary examination and at the trial his counsel was not permitted to question Officer Loeber as to the information which the officers had before entering the apartment that persons living there had been selling narcotics. Since there was no need to establish probable cause under the facts of this case, no purpose would have been served by such inquiry. (People v. Burke, 47 Cal.2d 45, 48-49, 301 P.2d 241; see People v. Faulkner, 166 Cal.App.2d 446, 448, 333 P.2d 251.) The testimony of Officer Loeber was sufficient to sustain a finding by the trial court that the...