People v. Bretado

• Decision Date: 20 February 1960
• Docket Number: Cr. 6950
• Citation: 178 Cal.App.2d 465,3 Cal.Rptr. 216
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Moriega BRETADO, Defendant and Appellant.

Page 216

3 Cal.Rptr. 216

178 Cal.App.2d 465

PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Moriega BRETADO, Defendant and Appellant.

Cr. 6950.

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

Feb. 20, 1960.

Ellery E. Cuff, Public Defender of Los Angeles County, Charles Gordon, Richard W. Erskine, Deputy Public Defenders, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

After submitting the matter to the trial court on the Reporter's Transcript of the proceedings had at the preliminary hearing, defendant was convicted of possession of marijuana in violation of Section 11500, Health & Safety Code. He appeals from the judgment and order denying his motion for new trial. The sole issue before this court relates to the sufficiency of the evidence to support the conviction of guilt.

Defendant offered no defense testimony and did not take the stand in his own behalf. There is no conflict in the evidence; and assuming every fact which the trial court could have reasonably deduced therefrom (People v. Newland, 15 Cal.2d 678, 104 P.2d 778), we find no legitimate ground for reversal.

On April 30, 1959, defendant's brother Maragito was arrested at his home in Azusa by Officer Trujillo, at which time and place marijuana was found. Shortly thereafter on the same day, Trujillo and other officers returned to the residence where they spoke to defendant's mother who gave permission to search the premises, the result of which they found a box containing two brown marijuana cigarettes on 'top of a shelf or on top of a closet' in what his mother stated to be defendant's bedroom. Approximately 20 minutes later Deputy Caruth arrested defendant in the alley area behind the house. He told the deputy that the box belonged to him, having found it near his place of work. Asked by the officer if the brown-wrapped cigarettes were his, he said he knew nothing about them. Then asked to look in the box, defendant did so and said that 'he did not know what was in there, that it wasn't in there when he found it,' and he had not looked in it since he found it. Defendant also told the officer that the room in which the box was found belonged to him, was the one in which he slept and in which he had his personal belongings, including his clothing and personal effects; and that his brother, who also lived in the house, 'has all his stuff in the other bedroom.'

Citing People v. Gory, 28 Cal.2d 450, 170 P.2d 433, and People v. Winston, 46 Cal.2d 151, 293 P.2d 40, and relying chiefly on People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177, appellant contends that the evidence is insufficient to support the judgment of conviction in that the People failed to prove the narcotic was under his dominion and control and that he knew of its presence and narcotic nature.

The Supreme Court in People v. Gory, 28 Cal.2d 450, 170 P.2d 433, after an extensive review and discussion of the authorities on the issue of possession, laid down the general rule here applicable: 'The distinction which must be drawn, from a reading of the foregoing authorities, is the distinction between (1) knowledge of the character of the object and the unlawfulness of possession thereof as embraced within the concept of a specific intent to violate the law, and (2) knowledge of the presence of the object as embraced within the concept of 'physical control with the intent to exercise such control,' which constitutes the 'possession' denounced by the statute. It is 'knowledge' in the first sense which is mentioned in the authorities as being immaterial but 'knowledge' in the second sense is the essence of the offense.' 28 Cal.2d at pages 455-456, 470 P.2d at page 436. Thus, the issue before us is simply whether there is sufficient evidence to support the implied finding of the trial court that defendant had knowledge of the presence of the marijuana in his personal effects in his room as embraced within the concept of 'physical control thereof with the intent to exercise such control' (People v. Gory, 28 Cal.2d 450, 455, 470 P.2d 433, 436), which is the very essence of the offense charged against him (People v. Douglas, 141 Cal.App.2d 33, 36, 296 P.2d 1).

That the narcotic was in a box belonging to defendant, located in his room, is demonstrated by the undisputed testimony; and while his knowledge of the presence of the marijuana cigarettes in the box must be shown, the uncontradicted fact that they were found in defendant's personal effects, on top of a closet in his bedroom, justified the inference that he knew of their presence. Appellant, however, seeks to take advantage of the evidence that his brother, a convicted narcotic violator, also lived in the house; but any suggestion that this, standing alone without further elaboration or explanation, could negative a finding that the box and its contents belonged to defendant and that he knew of their presence in his bedroom, is without merit. Factually, there is nothing in the record to show Maragito had access to defendant's room, his closet or his personal effects; on the contrary, it discloses by defendant's own admission, that his brother occupied another bedroom in which he had 'all his stuff.' Any implication, therefore, that the narcotic belonged to another, or it was placed in defendant's room without his knowledge, must be based solely on the evidence that Maragito had access to the house in which he lived in another room, which implication we deem to be unreasonable under the circumstances. Defendant did not take the stand to deny the cigarettes were his or to explain their presence in his room; nor did he at any time directly accuse his brother of possession of the narcotic or represent that Maragito visited or occupied his room. Defendant at no time made any suggestion that the only other person occupying the house, his mother, was involved in the crime; and neither she nor Maragito took the stand on his behalf. Circumstances as well as direct evidence may show possession which may be constructive as well as physical. People v. Van Valkenburg, 111 Cal.App.2d 337, 340, 244 P.2d 750.

Nor is exclusive possession necessary, for although others may have had access to the residence, or even to the defendant's bedroom, this 'would not of itself give them access to the closets' (People v. Flores, 155 Cal.App.2d 347, 349, 318 P.2d 65, 66); and certainly finding the marijuana among the personal effects of the accused, in his room in an out-of-the-way place on shelf above his closet, raises a reasonable and permissible inference that the narcotic was his even though another person may have had access to the house and to his...