 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. O'Hearn1/31/1983
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
Crim. Nos. 11431, 11506
1983.CA.41122 ; 142 Cal. App. 3d 566; 191 Cal. Rptr. 481
January 31, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GERALD O'HEARN ET AL., DEFENDANTS AND APPELLANTS
Superior Court of Siskiyou County, No. 32856, James E. Kleaver, Judge.
Kanter, Williams, Merin & Dickstein and Cathleen Williams for Defendants and Appellants.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Eddie T. Keller and Nelson P. Kempsky, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Abbe, J., with Carr, J., concurring. Separate dissenting opinion by Evans, Acting P. J.
Abbe
These two appeals brought by codefendants Gerald O'Hearn and Dennis D. Allbaugh, consolidated upon this court's own motion, present identical issues of law and fact.
Defendants Gerald O'Hearn and Dennis Allbaugh appeal from the judgment of conviction of possession of marijuana for sale (Pen. Code, § 11359) after trial by court. Defendants' sole contention is that since the sheriff intentionally destroyed 84 out of 85 marijuana plants seized, the trial court erred in allowing testimony concerning the destroyed plants.
Facts
In the early evening of September 17, 1980, Undersheriff Jack Partlow was driving along a rural road in Siskiyou County when he observed a pickup truck moving down a driveway towards the road. As the sheriff watched, the truck stopped and backed up the driveway.
Sheriff Partlow walked up the driveway and observed that the bed of the pickup truck was filled with marijuana plants. Shortly thereafter defendants Dennis Allbaugh and Gerald O'Hearn approached the truck. Partlow identified himself to them. Allbaugh claimed to be the owner of both the truck and part of its cargo, and O'Hearn claimed ownership of a part of its cargo.
There were 85 plants in the pickup ranging from four to ten feet in length. The plants were generally bushy and exhibited substantial resin and budding. Officer Palmer estimated the total weight of these 85 plants to be about 100 pounds. Sheriff Partlow segregated one plant as a sample which was later identified as marijuana in a laboratory analysis. A large state forest service truck arrived and state forest personnel removed 84 plants from the pickup and put
them in the state truck, which already contained many other marijuana plants confiscated from 15 other nearby locations. All the plants in the state truck were removed to a storage facility.
Pursuant to court order all of the plants that had been collected were destroyed. Before destruction the weight of these plants was determined to be 2,970 pounds. A photograph was taken depicting the plants in bulk. One plant from each of the fifteen separate confiscations was retained and this was done before all the plants were commingled.
Discussion
"In People v. Hitch (1974) 12 Cal. 3d 641, 650 [117 Cal. Rptr. 9, 527 P.2d 361], [the court] held that the obligation to disclose the existence of material evidence places on the state a correlative duty to preserve such evidence even without a request therefor, and directed that in the
Page 1 2 3 4 5 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|