Gavin

Defendant was tried by a jury upon two charges: count I, possession of amphetamine tablets in violation of Health and Safety Code section 11910; and count II, possession of lysergic acid dimethyltryptamine (LSD), also a violation of section 11910. Both offenses allegedly occurred on or about October 25, 1969. The jury found her guilty of count I and not guilty of count II. The court suspended proceedings and placed defendant upon probation. She is here appealing from that judgment. The notice of appeal also refers to the order denying her motion to suppress evidence. That order is not separately appealable but is reviewed upon the appeal from the judgment. (Pen. Code, § 1538.5, subd. (m).)

We have concluded that the evidence was legally obtained, but that the court’s instructions misled the jury to defendant’s prejudice, and for that reason the judgment must be reversed. The two issues will be discussed separately.

The Admissibility of the Evidence

In this truth-is-stranger-than-fiction drama the evidence received on the motion to suppress evidence is for the most part uncontradicted. In reviewing its sufficiency we must view it in the light most favorable to the…