Johnstone

Defendant was accused of violating section 11530 of the Health and Safety Code (possession of marijuana). A physician was appointed to examine him as to his *41 sanity (Pen. Code, § 1368). The issue of his sanity was submitted to the court on the physician’s report, and the court found that defendant was presently sane. In a jury trial, defendant was found guilty as charged. His petition for a writ of habeas corpus and his motion for a new trial were denied. Criminal proceedings were adjourned, and proceedings were instituted under section 3051 of the Welfare and Institutions Code (narcotics addiction). Defendant filed a notice of appeal from the order denying his motion for a new trial. Thereafter, defendant was returned to the court by reason of his having been convicted previously of robbery (Welf. & Inst. Code, § 3052), probation was denied, and he was sentenced to prison for the term prescribed by law. He filed a notice of appeal from the judgment and from the order denying his motion for a new trial.

Appellant contends that he was denied a trial on the issue of his present sanity; and that the 1968 amendment of section 11530 of the Health and Safety Code (permitting a…