People v. Newberry

Appellant Max Ronald Newberry, Roy Mits Nitta and James Franklin Greene were charged by information with possession of marijuana in violation of section 11530, Health and Safety Code. Motion under Penal Code section 995 was granted as to defendant Greene. After a nonjury trial defendants Newberry and Nitta were convicted. Newberry was sentenced to imprisonment for one year in the county jail. He appeals. Represented below by counsel of his own choice, he appears here in propria persona.

His primary contention is unlawful search and seizure and use of narcotics thus obtained to procure a conviction. The point is not well taken.

On February 20, 1961, at about 10 a. m., Los Angeles Police Officers Conrad and Teague, who were in plain clothes but driving a “felony car” easterly on Pico Street in Los Angeles,

The fact that the green leafy material found in these various items, which were seized by police, was marijuana is established by stipulation made by counsel to the effect that William King, a forensic chemist, would be deemed to have so testified.

Newberry was asked, “when was the last time he blasted a joint, and he stated that he just toked up this morning, just had one this morning before we got there”; that he “used” a couple of times a week; “And I [Conrad] said, ‘Are you—• you must be doing a little dealing, with all this stuff you’ve got here. ’ And he stated, ‘ I just deal to friends, and not to— I am not a real dealer.’ . . . He said, ‘What would you do if the police were coming in your door?’ He said, ‘I ran when you came to the door.’ And he says—‘I was seared.’ ”

In the foregoing statement we have accepted as true the testimony and other evidence favorable to respondent as we are required to do. (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ].)

The breaking of the door and search of the person and of the house required as justification only probable cause to believe that a felony was being committed by appellant. “The courts are in substantial agreement as to what constitutes reasonable cause or probable cause such as will justify one in arresting or prosecuting another upon a criminal charge. We consider as a clear and comprehensive statement of the rule, that announced in People v. Kilvington, 104 Cal. 86 , 92 [ 37 P. 799 , 43 Am.St.Rep. 73 ], as follows: ‘ “There must be such a state of facts ... as would lead a man of ordinary care and prudence to believe, or entertain an honest

One who obviously was a user of marijuana and then under its influence guided the officers to the place where appellant lived, the place for which Greene had been headed when he saw the police. When appellant answered his knock, appellant’s own face displayed the same appearance as did Greene’s and the officer immediately concluded that he too was under the influence of marijuana, which fact constituted a misdemeanor committed in their presence (Health & Saf. Code, § 11721), giving cause for immediate arrest (Pen. Code, § 836, subd. 1). Upon mention of police appellant dropped the curtain and fled precipitately and loudly. There is no lack of precedents for the conclusion that this combination of circumstances warranted the officers in breaking into the house, pursuing the culprit lest he disappear or destroy contraband, and justified them in searching him and his place of residence. (See People v. Garnett, 148 Cal.App.2d 280 , 283 [ 306 P.2d 571 ] ; People v. Edwards, 142 Cal.App.2d 419 , 420 [ 298 P.2d 664 ]; People v. Lawton, 186 Cal.App.2d 834 , 835-836 [ 9 Cal.Rptr. 122 ]; People v. Martin, 46 Cal.2d 106 , 108 [ 293 P.2d 52 ]; People v. Maddox, 46 Cal.2d 301 , 306 [ 294 P.2d 6 ]; People v. Moore, 140 Cal.App.2d 870 , 873 [ 295 P.2d 969 ] ; People v. Thymiakas, 140 Cal.App.2d 940 , 941-942 [ 296 P.2d 4 ].)

The foregoing review of the facts establishes the futility of appellant’s argument that the evidence is insufficient to support the conviction. His contention that Officer Conrad’s testimony is incredible fails to recognize the rule stated in People v. Huston, 21 Cal.2d 690 , 693 [ 134 P.2d 758 ] : “To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]”

The claim that Officer Conrad was not qualified to express an opinion as to whether appellant was under the influence of a narcotic cannot be sustained. It comes too late. This testimony was given at the preliminary hearing and no

Officer Conrad had been on the police force for 14 years and 2 months, of which time 2 years and 2 months were spent with the Wilshire felony detail. It is doubtful whether testimony that a person is under the influence of a narcotic requires expert qualifications on the part of the witness. (See People v. Moore, 70 Cal.App.2d 158 , 165 [ 160 P.2d 857 ].) But if it be so considered, the failure of defendant’s counsel to object to the officer’s qualifications before he was permitted to express an expert opinion effected a waiver of the point. “Objections to an expert’s qualifications must be made before his testimony is admitted. A lack of qualification is usually established by cross-examination immediately after the witness has testified on direct examination that he is qualified as an expert, and before he is called on to express an opinion. In the absence of timely objection to his competency, the court may permit him to testify as an expert. And in accordance with general rules, an objection to his competency cannot be first raised on appeal.” (19 Cal.Jur.2d § 295, p. 22.)

Judgment affirmed.

Fox, P. J., and Herndon, J., concurred.