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

PEOPLE of the State of California, Plaintiff and Respondent, v. Armand Carl MULVEY, Defendant and Appellant.

Cr. 7577.

Decided: August 01, 1961

Armand Carl Mulvey, in pro. per. No appearance for respondent.

In a jury trial Armand Carl Mulvey was convicted of the possession of marijuana and was sentenced to state prison. It was charged in the information that he had previously served a term in state prison following a conviction of forgery. No disposition was made of the former conviction. Mulvey was represented by counsel at the trial; he made a motion for new trial, which was denied, and he filed in propria persona his notice of appeal from the judgment and the order denying his motion. Upon his application we appointed counsel. This was a mistake influenced, perhaps, by the tragedy of the situation in which, for possession of a comparatively small amount of marijuana, defendant has been returned to prison and his wife and children have been cast upon public charity.

Appointed counsel has furnished us with a comprehensive report and analysis of the evidence and other trial proceedings, including the instructions, which concludes with the statement that in his opinion there is no basis for the appeal. Our own review of the record has convinced us that the appeal is wholly without merit, but we have nevertheless given it full consideration.

There was evidence that Officers Hanks and Beckman went to the residence of defendant and were given permission by defendant to make a search of the premises. The officers found considerable quantities of marijuana under the stove in one of the rooms occupied by defendant, has wife and two small children. When questioned by the officers defendant admitted that the marijuana belonged to him. On the stand he explained the admission by stating that the officers told him his wife, his brother and other persons would be arrested and the children would be taken to juvenile hall. The officers denied having made any such statements. Defendant and his wife related a sordid story of the circumstances leading to the arrest. In some respects it bore the imprint of truth, but it did not establish defendant's innocence as a matter of law. Defendant's wife testifed that she had been separated from her husband for 3 or 4 days prior to the arrest and that during this time she had spent the nights with one Bill Takahashi at his home; she ‘guessed’ that she had fallen in love with him ‘or something like that.’ He told her there was marijuana under the stove in her house and requested her to call the police. From Takahashi's house she informed the police that there was marijuana under the stove. About a week later Takahashi told her that he had put it there himself. After defendant's arrest she fell ‘out of love’ with Takahashi when he told her that he had planted the marijuana and he ‘started going around with another certain party,’ and she ‘fell back in love’ with her husband. She informed him of what Takahashi had told her and that at his request she had called the police. Defendant corroborated her as to these communications. Defendant also testified that he and his wife went to Takahashi and accused him of having planted the marijuana and asked him to testify to that fact at the trial. Takahashi did not deny the accusation, but refused to testify. At the time of trial he could not be found.

Officer Hanks testified that he found five bags containing marijuana under the stove. When questioned at the time defendant produced another bag containing several marijuana cigarettes and some pills (non-narcotic). On the stand defendant admitted having handed this bag to Officer Hanks. Defendant also stated to Hanks that he had purchased a half pound for his own use and to give to his friends; there were five and a half cans left. At the police station Hanks asked defendant if he had sold three half cans or a pound and a half and defendant answered ‘three half cans.’

Upon cross-examination defendant admitted that Officer Hanks had accused him of having purchased a half a pound, or seven cans, and asked whether he had given some of it to a friend and he, defendant, agreed. ‘Q. You agreed with everything he said? A. Yes, that was my—I couldn't do nothing else.’ Both officers testified that defendant's admissions were free and voluntary. Defendant also testified that the officers offered to have the charges against him dismissed if he would cooperate with them. He did not testify that his admissions were made because of these alleged promises.

Upon the hearing of the motion for a new trial defendant produced a letter from Takahashi to Mrs. Mulvey, and although the letter was not offered in evidence it appeared from the record that it was merely corroborative of the testimony of Mrs. Mulvey of her relations with Takahashi. A copy of what purports to be such a letter has been sent to this court in a lengthy communication from defendant. It is not properly before the court, but if we assume that it is a copy of the letter which the trial judge read, it has no bearing upon the questions on appeal.

There was evidence which would have justified the jury in believing that the marijuana was planted in defendant's house by Takahashi for the purpose of getting rid of defendant. Upon the other hand, from the entire evidence the jury could reasonably have found that notwithstanding the duplicity and venality of defendant's wife and the claimed machinations of Takahashi, the latter knew that defendant had the marijuana and prevailed upon Mrs. Mulvey to inform upon him, and that takahashi did not plant it in the house. The jurors believed that defendant told the truth when he made his admissions to the officers. In ruling on the motion for a new trial the court determined that the jury had reached a reasonable conclusion. The case turned upon the credibility of the witnesses which cannot be re-determined upon the appeal.

We have read the transcript of the argument of the prosecutor to the jury and find that it was in all respects a moderate, fair and dispassionate analysis of the evidence.

The judgment and the order are affirmed.