People v. Antista, Cr. 5221

• Decision Date: 19 November 1954
• Docket Number: Cr. 5221
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bart ANTISTA and Salome Rivers, Defendants, Bart Antista, Defendant and Appellant.

Page 177

276 P.2d 177

129 Cal.App.2d 47

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bart ANTISTA and Salome Rivers, Defendants, Bart Antista, Defendant and Appellant.

Cr. 5221.

District Court of Appeal, Second District, Division 3, California.

Nov. 19, 1954.

Eleanor V. Jackson, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Jay L. Shavelson, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Defendant Antista and codefendant Rivers were charged with the unlawful possession of marihuana, in violation of the Health and Safety Code, section 11500. Defendants entered pleas of not guilty as charged in the information. In a trial to the court, codefendant Salome Rivers was found not guilty and defendant Bart Antista was found guilty as charged in the information.

Proceedings were suspended and defendant Antista was granted three years' probation. He appeals from the judgment.

Police Officer Francis A. Cook went to appellant's apartment about 12:30 a. m. and found codefendant Salome Rivers lying on a couch and a man named Poocho sitting alongside her. Officer Cook proceeded to search the apartment and, in a cupboard in the living room, discovered a wax paper bag with loose green leafy material, an ash tray containing three cigarette butts, and some packages of wheat straw paper. Appellant then arrived at the apartment and denied knowledge of these items when they were shown to him. Further search of the apartment revealed a Band-Aid package containing green leafy material and wheat straw paper in a broken radio in an unused bedroom or storeroom. The green leafy substances found in the cupboard and the radio, and the cigarette butts found in the ash tray were all analyzed as marihuana by a qualified chemist.

Defendant testified that he left his apartment at about 3:00 p. m. and returned after midnight, finding the officer, Miss Rivers and Poocho in his apartment. He denied all knowledge of the presence of the marihuana; he had not used the storeroom or opened the radio for months; he was a nonsmoker and due to an arthritic condition, he could not breathe deeply or move his head easily. He testified that he had one key to the apartment and that it was his custom to leave the same under a mat outside the door for the use of his friends who frequently came to the apartment to watch television; Miss Rivers had slept in the apartment the preceding night. Miss Rivers testified she was clothed in a man's dressing gown over a slip when the officer entered. The latter testified that she said she had been living at the apartment for about ten days; she testified that she had not made the statement as claimed by the officer, but that she had slept in the apartment the preceding night. There was no evidence that Antista had had any previous connection with marihuana or narcotics. On the other hand, Miss Rivers had previously been convicted of the use of heroin. She was examined by the police for hypodermic needle marks and none was found. This was the extent of the evidence. The sole question is whether the evidence was legally sufficient to establish that defendant had possession of the marihuana. We believe it was insufficient. True, it was found in defendant's apartment, but the circumstances of the case distinguish it from the cases cited by the People and from the other cases we have examined in which convictions of possesion were upheld.

In People v. Van Valkenburg, 111 Cal.App.2d 337, 244 P.2d 750, heroin was found in the defendant's apartment concealed beneath a mattress and more was found in a pocket of a shirt which admittedly belonged to defendant who, it was testified, appeared to be under the influence of narcotics. When defendant's wife stated to officers that the heroin belonged to her, defendant remained silent. In People v. Physioc, 86 Cal.App.2d 650, 195 P.2d 23, defendant was seen by the arresting officer to throw away a matchbox which contained morphine. In People v. Brown, 92 Cal.App.2d 360, 206 P.2d 1095, the police officers found a powder in a glass jar on a shelf; on top of the jar were two cuff buttons; inside the jar, wrapped in newspaper, was a substance proved to be heroin. The officers replaced the top of the jar and the cuff buttons; they watched the apartment continuously until defendant entered it; no one else had entered; defendant was alone in the apartment when the officers re-entered it; the cuff buttons had been removed and the jar had been opened. Although defendant denied that he sniffed heroin, there was testimony that his nostrills were inflamed. In People v. Torres, 98 Cal.App.2d 189, 219 P.2d 480, Torres, Tapia and Estrada were riding in an automobile which Torres was driving in an erratic manner. Officers stopped the car, searched it, and found three neatly rolled marihuana cigarettes under a blanket on the front seat. When arrested, the three defendants gave conflicting and contradictory statements to the officers. None of them mentioned having picked up hitchhikers. Later they said they had picked up one hitchhiker and again they had picked up three Mexican boys. It was in evidence that an automobile belonging to Tapia had previously been confiscated when it was found to contain marihuana cigarettes. On appeal the court pointed out that the marihuana was under the immediate and exclusive dominion and control of defendants. In each of these cases it was held there was legally sufficient evidence to support the conviction of possession.

To justify a conviction in any case on a charge of possession, it is necessary to prove that the accused knew of the presence of the forbidden substance and that the same was under his control. In the present case it was necessary for the state to prove either that the marihuana belonged to defendant or had been left in his care by someone else. Guilty knowledge is not presumed. It has to be established by evidence. In a sense it can be said that one has possession of everything that is contained in the home or apartment in which he lives but this is not the sense in which 'possession' is used in the penal statute. In all the cases we have examined in which conviction was upheld there was some incriminating statement or circumstance in addition to the presence of marihuana or narcotic which indicated knowledge of the defendant of its presence and his control of it. We have mentioned some of the circumstances that were present in the above cases and no doubt there are many others which would justify a court or jury in concluding that the accused had knowledge of the presence of the substance and control of it.

It has been said in a civil case, People v. One 1940 Chrysler, 77 Cal.App.2d 306, 314, 175 P.2d 585, 590: 'We think the true rule is that when narcotics are found concealed in or about an automobile, at least where such automobile is in the possession of the owner or his entrustee, the trial court may infer knowledge on the part of the owner. Such facts are sufficient to cast the burden of going forward with an explanation on the owner.' This was said in a case where a woman entrusted with a car, unlocked it, entered it in the company of a sailor, was apprehended by officers, who searched the car and found marihuana cigarettes under...