People v. Candiotto

• Citation: 275 P.2d 500,128 Cal.App.2d 347
• Decision Date: 26 October 1954
• Docket Number: Cr. 2968
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernie CANDIOTTO, Defendant and Appellant.

Page 500

275 P.2d 500

128 Cal.App.2d 347

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernie CANDIOTTO, Defendant and Appellant.

Cr. 2968.

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

Oct. 26, 1954.

Hearing Denied Nov. 24, 1954.

Leslie C. Gillen, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen. of the State of Cal., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Dep. Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Convicted of violating section 11500 of the Health and Safety Code, possession of marijuana, defendant has appealed from the judgment and from an order denying a new trial.

He does not claim that the evidence was insufficient to support the verdict. He does claim prejudicial error in the asserted failure of the trial court to instruct the jury adequately on certain questions and prejudicial error because of asserted misconduct of the trial judge. A brief summary of the principal facts in evidence will aid the discussion.

While watching an automobile (which it developed belonged to defendant) parked outside a certain hotel in San Francisco, three narcotic agents saw defendant leave the hotel and approach the car.

The agents identified themselves, told defendant they would like to search his room (which was in the hotel mentioned) and he willingly allowed them to do so. He was told he was suspected of possessing narcotics. Search was made. No narcotics were found on defendant's person. Agent Mulgannon found a paper bag containing 52 grains of marijuana seeds on the hat shelf in the clothes closet and immediately announced his find as marijuana and exhibited it to the others in the room. He found a second bag (containing 157 grains) in the wastepaper basket and similarly announced the find. He found a partially smoked marijuana cigarette under the shelf paper of a bureau drawer which he also announced in defendant's presence. Defendant said that the marijuana was his, that none of it belonged to his wife, that he would like to smoke the remaining portion of the marijuana cigarette, and that he had obtained the marijuana from one Bob in Los Angeles, which story he changed to make its source one Connie in the Twin Peaks area of San Francisco.

Agent Bautista left the hotel room to search defendant's car. He looked on the floor and on the seat, making what he described as a superficial search. At that time he did not have in his possession the marijuana which had been found in defendant's room and he found no narcotics in the automobile. Later, he put the marijuana which had been found in defendant's room in his pocket and drove defendant's car to a garage. The next day Agent Trainor found a few scattered marijuana seeds on the driver's seat and on the floor board, two grains in all.

At the trial defendant testified that the marijuana had been found in his room as the agents said and that he then and there claimed it to take the blame against the contingency that it belonged to his girl friend, who also occupied the room. He testified that the marijuana was not his or hers and that he had no knowledge of its existence or presence in the room until the agents found it. He denied ever having seen any such substance in his car. He testified he had loaned his car to someone that day; also that several friends of his had been inhis hotel room earlier and at one time he had left them alone in the room while he went downstairs for a package of cigarettes. He also testified that he knows what marijuana is and recognizes it when he sees it.

(1) Was it prejudicial error, under the circumstances of this case, to refuse to give a requested instruction which would have informed the jury that knowledge of the narcotic character of the thing possessed was an essential ingredient of the offense charged?

We entertain no doubt that knowledge of the narcotic character of the thing possessed is an essential ingredient of the possession denounced by section 11500 of the Health and Safety Code. Yet, so vigorous is the state's criticism of this concept, it seems desirable to make a fairly comprehensive review of the recent case law on the subject.

In People v. Gory, 28 Cal.2d 450, 170 P.2d 433, it was deemed erroneous to reject an instruction that 'In order for defendant to have in his possession the objects charged in the information, you must be convinced by the evidence and beyond a reasonable doubt that he knowingly had such objects in his possession. The meaning of the word 'possession' includes the exercise of dominion and control over the thing possessed." 28 Cal.2d at page 453, 170 P.2d at page 435. The use in this instruction, of the words 'the objects charged in the information' and the words 'such objects' operated as a reference to the words 'flowering tops and leaves of Indian Hemp (cannabis sativa)' used in the information. The word 'knowingly,' said the court, imports "* * * a knowledge that the facts exist which bring the act or omission within the provisions of this code. * * *" 28 Cal.2d at page 456, 170 P.2d at page 437.

In People v. Cole, 113 Cal.App.2d 253, 248 P.2d 141, ¹ the charges were 'possession' and 'transportation' of marijuana. The giving of the following instruction was held erroneous: "While there must be a unity of act and intent in every public offense, it is not necessary that the evidence show that the defendant knew that the object or objects which he possessed were narcotics or were prohibited by law, so long as * * * he had knowledge of the existence and location of such object or objects and intended to maintain physical control thereof." 113 Cal.App.2d at page 258, 248 P.2d at page 144. Of this the reviewing court said: 'The italicized words were erroneous as we understand the law. Under this instruction if the defendant possessed marijuana honestly believing it to be an innocuous substance such as alfalfa or tobacco he would still be guilty. While a specific intent to violate the law is not an ingredient of the crime of possession of a narcotic, "a knowledge that the facts exist which bring the act * * * within the provisions of this code" is necessary. People v. Gory, 28 Cal.2d 450, 456, 170 P.2d 433, 437. One of the facts of which a defendant must have knowledge is that the article is a narcotic, because that is one of the facts, indeed the essential fact, 'which bring(s) the act within the provisions of this code.' To instruct as the court did in this case that it is not necessary 'that the defendant knew that the object or objects which he possessed were narcotics' is to authorize the conviction of a defendant who possessed marijuana in the honest belief that it was not marijuana. If that is the law then if I am given marijuana cigarettes, in a package of one of the standard brands of cigarettes made of tobacco, and retain it in my possession in the honest and innocent belief that it is a package of that brand of cigarettes I am nonetheless guilty of a felony, or if I cut a weed from the roadside which is in fact marijuana and use it as a part of a floral decoration in my home not knowing its narcotic character I am equally guilty. It is axiomatic that all laws must be reasonably construed and such a construction would so clearly pass the bounds of reason as to be unthinkable.' 113 Cal.App.2d at page 258, 248 P.2d at page 144.

Other decisions subsequent to People v. Gory, supra, recognize this requirement. In the following cases, when determining whether the evidence was sufficient to support a verdict of conviction of possession of narcotics, the reviewing court made these observations: 'While mere presence at the scene of the crime, standing alone, is not sufficient to sustain a finding of guilt, and while actual knowledge of the presence of narcotic substance is essential in such a case as this, the surrounding facts and circumstances may be sufficient to establish the essential facts of knowledge, and physical or constructive possession.' People v. Gentry, 118 Cal.App.2d 501, 503, 257 P.2d 1012, 1013; the evidence was held 'insufficient to prove the defendant sold the heroin to the operator or that he had possession or knowledge of the presence of heroin in the closet.' People v. Barnett, 118 Cal.App.2d 336, 339, 257 P.2d 1041, 1043 ² 'the prosecution must establish that the defendant had knowledge of the presence of the article and that it was marijuana', People v. Batwin, 120 Cal.App.2d 825, 827, 262 P.2d 88, 90; 'In order to sustain a conviction of possession of narcotics it must be shown that the defendant had either physical or constructive possession, and that he was aware that the substance of which he had possession was a narcotic', People v. Walker, 121 Cal.App.2d 173, 174, 262 P.2d 640, 641; ³ 'basically the question is, where a defendant is found in sole occupancy of premises with the key to a locked room on his person, he admits being in the room the day before and narcotics are found therein, may the jury fairly draw the inference that he knowingly possessed the narcotics?', People v. Neal, 122 Cal.App.2d 749, 751, 265 P.2d 525, 526; 'the opinion in that case [People v. Cole, supra, 113 Cal.App.2d 253, 248 P.2d 141] is one which the authorities should understand and respect.' People v. Rice, 123 Cal.App.2d 124, 125, 266 P.2d 200, 201. In People v. Lotrean, 120 Cal.App.2d 583, 584, 261 P.2d 543, 544, the court made a like interpretation of People v. Gory, supra, 28 Cal.2d 450, 170 P.2d 433, saying: 'In that case our Supreme Court states the rule that knowledge in relation to a defendant's awareness of the presence of narcotics is a basic element of the offense of possession. And in that case a conviction for possession of marijuana was reversed because the trial court withdrew from the jury an instruction that to sustain a conviction the accused should have been aware of his possession of the proscribed narcotic.' ⁴

Thus it clearly appears that knowledge of the narcotic...