Woolwine

Pearl Dennis and defendant were charged with selling marijuana (§ 11531, Health & Saf. Code); the information also alleged that defendant had suffered four prior felony convictions. The cause was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing. Defendant was convicted of possession of marijuana (§ 11530, Health & Saf. Code), a lesser but necessarily included offense; Pearl was acquitted. While defendant denied the priors, the record fails to show that the trial judge made any finding thereon. Defendant appeals from the judgment and sentence.

David Baker was asked by Officer Garifo to purchase some narcotics in Fran’s Tavern. Around 10:30 p.m. on March 3, 1967, Baker entered the tavern where defendant and Pearl were seated at the bar; he had seen them on previous occasions. He approached defendant and discussed buying marijuana cigarettes; they then proceeded to the washroom where they continued their conversation. Returning to the bar, they sat down and defendant handed Baker three marijuana cigarettes for which he received $1.00 from Baker. One of the marijuana cigarettes defendant took from a “pack” he had on his person; Baker…