People v. Bowens

• Citation: 229 Cal.App.2d 590,40 Cal.Rptr. 435
• Court: California Court of Appeals
• Decision Date: 11 September 1964
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William O. BOWENS, Defendant and Appellant. Crim. 4438.

Page 435

40 Cal.Rptr. 435

229 Cal.App.2d 590

PEOPLE of the State of California, Plaintiff and Respondent, v. William O. BOWENS, Defendant and Appellant.

Crim. 4438.

District Court of Appeal, First District, Division 1, California.

Sept. 11, 1964.

Rehearing Denied Oct. 5, 1964.

Hearing Denied Nov. 10, 1964.

Ronald M. Sohigian, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

On this appeal from a judgment of conviction for possession of heroin (violation of Health & Saf.Code, § 11500), the main question presented is whether defendant has been denied his constitutional right to have the jury determine every material issue presented by the evidence. The determination of this question turns upon the giving of an instruction which omitted to state that an essential element of the crime charged was knowledge of the narcotic nature or character of the object possessed. The instruction given was in conformity to CALJIC Instruction No. 703 and reads as follows: 'Within the meaning of the law, a person is in possession of a narcotic when he knowingly has the narcotic under his dominion and control, and to his knowledge, it is either carried on his person or is in his presence and custody, or if not on his person or in his presence, the possession thereof is immediate, accessible, and exclusive to him.' ¹ We have concluded that, although this instruction failed to instruct on the essential element of knowledge of the nature or character of the object possessed, such error, under the circumstances of this case, was not prejudicial but can be cured by invoking article VI, section 4 1/2, of the California Constitution. ²

The salient facts of the instant case, as disclosed by the record, are as follows: On March 15, 1963, Police Officers Hilliard and Schwedhelm, members of the narcotics detail, were cruising in an unmarked police car when they observed defendant, who was known to Hilliard, walking along the street. As the car drew abreast defendant the latter was observed to move his left hand behind him. Hilliard asked defendant if he could look at his arms. Defendant replied in the affirmative, removed his coat, rolled up the sleeves of the sweater he was wearing, and exposed both of his arms. Hilliard observed fresh scars on the inside of the arms which, on examination, he testified were fresh puncture marks caused, in his opinion, by the injection of a narcotic. While Hilliard was examining defendant's arms, Schwedhelm searched the sidewalk area where defendant had been observed making the hand movement aforesaid. In his search he discovered a white paper packet which he recognized as a 'small bindle, paper of heroin' which he then showed to Hilliard. Defendant was thereupon taken into custody and brought to vice control headquarters where he was placed in a holding cell. Upon request, defendant removed his coat and sweater, whereupon a white piece of paper, similar to that found on the sidewalk earlier, fell from his sweater. Each of these paper packets contained a powdery substance which was subsequently determined to be heroin. ³ Officer Leen testified that on March 16, 1963 defendant refused to take a Nalline test; that defendant had three puncture marks on his right inner elbow and five on the left inner elbow; that defendant told him he was sick, which Leen interpreted to mean that defendant was experiencing withdrawal symptoms. A physician, experienced in the field of narcotics, testified that he spoke to defendant on March 16, 1963; that defendant bore numerous new marks on his arms; and that defendant stated he wanted some morphine sulphate, which is a drug used to case withdrawal symptoms. He further stated that in his opinion defendant was then under the influence of narcotics. Defendant testified in his own behalf. He denied having thrown anything on the sidewalk, and denied that the package found on the sidewalk was his. He did not deny, however, that the packet which fell from his sweater in the holding cell was his.

It is well established that in a prosecution for unlawful possession of narcotics the People must prove the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. (People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Melendez, 225 A.C.A. 83, 86, 37 Cal.Rptr. 126; People v. Winston, 46 Cal.2d 151, 160-161, 293 P.2d 40; People v. Gory, 28 Cal.2d 450, 454, 170 P.2d 433; People v. Tabizon, 166 Cal.App.2d 271, 273, 332 P.2d 697.) Accordingly, the crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance and knowledge of the narcotic character of the article possessed. (People v. Melendez, supra, 225 A.C.A. p. 86, 37 Cal.Rptr. 126; People v. Winston, supra, 46 Cal.2d pp. 160-161, 293 P.2d 40; People v. Gory, supra, 28 Cal.2d p. 456, 170 P.2d 433.) It is also a fundamental principle that it is the duty of the trial court in a criminal case to give, of its own motion, instructions on the general principles of law governing the case, even though not requested by the parties; however, it is not the court's duty to give instructions upon specific points developed through the evidence introduced at trial, unless such instructions are requested by the party desiring them. ⁴ (People v. Warren, 16 Cal.2d 103, 116-117, 104 P.2d 1024; People v. Putnam, 20 Cal.2d 885, 890, 129 P.2d 367; People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116.) 'The most rational interpretation of the phrase 'general principles of law governing the case' would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.' (People v. Bevins, 54 Cal.2d 71, 77, 4 Cal.Rptr. 504, 508, 351 P.2d 776, 780; People v. Wade, supra, 53 Cal.2d p. 334, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Atwood, 223 A.C.A. 347, 363, 35 Cal.Rptr. 831.) As one of the essential elements of possession of narcotics is the knowledge of the narcotic character of the substance possessed, it follows that it was the trial court's duty in the case at bench to so instruct the jury even without a request therefor by defendant. The failure to so instruct is error. (People v. Winston, supra, 46 Cal.2d p. 161, 293 P.2d 40; People v. Candiotto, 128 Cal.App.2d 347, 354-355, 275 P.2d 500; People v. Perez, 128 Cal.App.2d 750, 759, 276 P.2d 72; People v. Taylor, 159 Cal.App.2d 752, 759, 324 P.2d 715; see People v. Simpson, 170 Cal.App.2d 524, 532-533, 339 P.2d 156.)

In Winston, Taylor, Perez and Candiotto, it was held that although it was error to fail to instruct on the element of the knowledge of the narcotic character of the object, the error was not prejudicial under the circumstances of the case in the light of article VI, section 4 1/2, of the California Constitution. In each of these cases it was held that, notwithstanding the failure to so instruct, the evidence before the jury was such that there could be no doubt that the defendant knew that the material in his possession was a narcotic, ⁵ and that, therefore, it was not reasonably probable that a result more favorable to the defendant would have been reached if the court had given the subject instruction. ⁶ The People rely upon People v. Brajevich, 174 Cal.App.2d 438, 344 P.2d 815, as authority that CALJIC Instruction No. 703 properly advises the jury that knowledge of the narcotic character of the object possessed is an essential element of the crime of possessing narcotics. This case is advanced by the People as holding that the language 'knowingly has the narcotic under his dominion and control' connotes the concept of knowledge of the nature or character of the article possessed. This is not the holding of Brajevich. A reading of the opinion in that case discloses that CALJIC Instruction No. 703 was one of the instructions given on the subject of possession and knowledge. While the other instructions on the subject were not set out verbatim in the opinion there is a strong indication that these instructions covered the subject of knowledge of the narcotic character of the substance involved. On page 446, 344 P.2d on page 820 we find the following language: '[T]he court fully and correctly instructed the jury of the necessity for evidence that the defendant knew of and exercised control over the narcotics found in his automobile; * * *' (Emphasis added.)

The fact of knowledge may be proved circumstantially, and it may be inferred from other facts. (People v. Mateo, 171 Cal.App.2d 850, 855, 341 P.2d 768; People v. Magdaleno, 158 Cal.App.2d 48, 51, 322 P.2d 89; People v. Flores, 155 Cal.App.2d 347, 349, 318 P.2d 65; People v. Blinks, 158 Cal.App.2d 264, 267, 322 P.2d 466.) In the present case there was ample evidence from which the jury could infer that defendant had knowledge of the narcotic character of the objects which he possessed. Defendant, after looking in the direction of the officers, made a deliberate, furtive motion with his left hand behind him and away from the officers. One of the officers found a bindle of heroin in the area where defendant made his motion. During a search of defendant another bindle of heroin fell from his sweater. Defendant's arms bore numerous fresh scabs and needle marks which were described as having been caused by the injection of a narcotic. A doctor testified that when he examined defendant on the day after his arrest, he was under the influence of narcotics and asked for morphine sulphate, a drug used to ease the withdrawal symptoms suffered by a narcotic user. Another police witness also testified that on the day after his arrest defendant was experiencing withdrawal symptoms. There can be no doubt from this evidence that defendant knew what a narcotic was. Accordingly, it cannot be said from an...