Russell

Following denial of his superior court motion to suppress “all evidence, tangible and intangible, seized from the trunk of defendant’s 1964 Pontiac,” defendant Russell pleaded guilty to a charge of possession of marijuana for sale, a violation of Health and Safety Code section 11359. He appeals from an order granting conditional probation.

We have concluded, for the reasons we now state, that the appeal is without merit.

At Russell’s earlier preliminary examination an officer had testified that upon Russell’s arrest and the opening of the trunk of his car: “Then I observed—ah, ah, an Alpha Beta paper bag with a small amount of marijuana residue inside of it; then I observed a small brown paper sack with approximately 24 ‘Thai Sticks’ wrapped in a clear plastic bag.... There was a blue flight bag; I unzipped this and found three large bags of marijuana inside and a green canister inside the trunk filled with marijuana seeds.” * For reasons as will later appear this testimony was not before the court on Russell’s motion to suppress.

The only issues posed by Russell at the superior court hearing on his motion to suppress were (1) the validity of his arrest by the officer,…

This case illustrates the difficulty an appellate court is likely to encounter in deciding a competency of counsel claim on appeal in the absence (at least) of some opportunity for allegedly incompetent counsel to respond and explain. I do not know, and am unable to determine from the record, whether the reason trial counsel gave for stipulating that all contraband in the trunk was seized properly (namely, that the police officer “made a plain view observation once the trunk was opened”) reflected (a) a mistake of fact (since the marijuana was in closed bags); or (b) what turned out to be a mistake *671 of law in lieu of People v. Dalton (1979) 24 Cal.3d 850 [ 157 Cal.Rptr. 497 , 598 P.2d 467 ], which was pending before the Supreme Court at the time of the suppression hearing; or (c) a cover for some other motivation, such as (following my colleagues’ hypothesis) to keep the trial court from learning at that point the extent of defendant’s illicit holdings. If it was a mistake of fact, then it may well have reflected incompetence on the part of counsel in failing to investigate adequately. If it was a mistake in what turned out to be the law, then the question would exist as to…

ELKINGTON, Acting P.J.

Following denial of his superior court motion to suppress "all evidence, tangible and intangible, seized from the trunk of defendant's 1964 Pontiac," defendant Russell pleaded guilty to a charge of possession of marijuana for sale, a violation of Health and Safety Code section 11359. He appeals from an order granting conditional probation.

We have concluded, for the reasons we now state, that the appeal is without merit.

At Russell's earlier preliminary examination an officer had testified that upon Russell's arrest and the opening of the trunk of his car: "Then I observed — ah, ah, an Alpha Beta paper bag with a small amount of marijuana residue inside of it; then I observed a small brown paper sack with approximately 24 `Thai Sticks' wrapped in a clear plastic bag.... There was a blue flight bag; I unzipped this and found three large bags of marijuana inside and a green canister inside the trunk filled with marijuana seeds." [*] For reasons as will later appear this testimony was not before the court on Russell's motion to suppress.

(1) The only issues posed by Russell at the superior court hearing on his motion to suppress were (1) the…