People v. Francis, Cr. 12971

CourtUnited States State Supreme Court (California)
Writing for the CourtBURKE; TRAYNOR; MOSK
Citation450 P.2d 591,75 Cal.Rptr. 199,71 Cal.2d 66
Parties, 450 P.2d 591 The PEOPLE, Plaintiff and Respondent, v. Gary Dale FRANCIS, Defendant and Appellant.
Docket NumberCr. 12971
Decision Date06 May 1969

Page 199

75 Cal.Rptr. 199
71 Cal.2d 66, 450 P.2d 591
The PEOPLE, Plaintiff and Respondent,
v.
Gary Dale FRANCIS, Defendant and Appellant.
Cr. 12971.
Supreme Court of California, in Bank.
May 6, 1969.

Page 201

[450 P.2d 593] [71 Cal.2d 69] Donald F. Roeschke, Tarzana, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

An information was filed charging Gary Dale [71 Cal.2d 70] Francis with selling and giving away marijuana (Health & Saf.Code, § 11531). 1 A jury trial was waived, and the case was submitted on the preliminary hearing transcript. The court found Francis guilty of possession of marijuana (Health & Saf.Code, § 11530), which the court determined to be 'a lesser offense than that charged * * * but necessarily included therein.' The court denied probation and sentenced him to imprisonment in the state prison for the term prescribed by law.

Francis appeals from the judgment contending, among other things, that the evidence is insufficient to support his conviction and that, if the conviction is sustained, the case should be remanded to the trial court with directions to reconsider the sentence in view of a recent amendment to section 11530, which permits the trial court in certain cases to impose a county jail term 2. We have concluded that the conviction should be upheld but that because of the recent amendment to section 11530 the case should be remanded to the trial court to reconsider the matter of probation and sentence.

Officer Finnigan (who presumably was acting undercover) met Francis and Gerald Roberts at a trailer court. Francis indicated that he and Roberts were going that evening to purchase marijuana and agreed to take Finnigan with them. The three men and one Bill Jones drove in the officer's car to the home of Cleatus Anderson. There Finnigan was introduced to Cleatus and Gary Anderson. Francis told Gary Anderson that they were interested in purchasing marijuana, and, upon being asked how much they wanted, Francis replied 'four cans.' Gary Anderson stated he would have to go to Bell Gardens to pick it up, and he and a woman left. They returned a short while later, and Gary Anderson was carrying a sack from which he

Page 202

[450 P.2d 594] removed four 'sandwich bag packages.' He handed Francis, Finnigan, Jones and Roberts each one package. Francis gave money to Roberts who handed it together with an additional sum to Gary Anderson. Finnigan paid Gary Anderson directly. It was stipulated that an [71 Cal.2d 71] examination revealed that the substance in the package handed to Finnigan was marijuana.

Francis contends that there is no evidence that he had possession of the marijuana sold to Officer Finnigan. Unlawful possession of narcotics is established by proof that the defendant had, among other things, physical or constructive possession of the contraband. (People v. Groom, 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Gorg, 45 Cal.2d 776, 780, 291 P.2d 469.) There is no evidence that Francis had physical possession of the marijuana sold to Finnigan; Gary Anderson obtained the marijuana and handed it directly to Finnigan.

The Attorney General asserts that Francis had constructive possession of the marijuana sold to Finnigan. 3 'The accused has constructive possession when he maintains control or a right to control the contraband.' (People v. Showers, 68 Cal.2d 639, 643--644, 68 Cal.Rptr. 459, 462, 440 P.2d 939, 942.) 'Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control' (People v. Showers, Supra, 68 Cal.2d at p. 644, 68 Cal.Rptr. at p. 462, 440 P.2d at p. 942) or which is subject to the joint dominion and control of the accused and another (People v. Jackson, 191 Cal.App.2d 296, 302, 12 Cal.Rptr. 748; People v. Poe, 164 Cal.App.2d 514, 516, 330 P.2d 681; People v. MacArthur, 126 Cal.App.2d 232, 236, 271 P.2d 914). The accused also has constructive possession of narcotics that are in the physical possession of his agent or of any other person when the defendant has an immediate right to exercise dominion and control over the narcotics. (People v. White, 50 Cal.2d 428, 431, 325 P.2d 985; People v. Blunt, 241 Cal.App.2d 200, 204, 50 Cal.Rptr. 440; People v. Gonzales, 116 Cal.App.2d 843, 844, 254 P.2d 603; People v. Sinclair, 129 Cal.App. 320, 322, 19 P.2d 23.)

The record is devoid of evidence that Francis had control or a right to control the marijuana sold to Finnigan. It does not appear that the marijuana was at a location subject to the dominion and control of Francis when Gary Anderson picked it up, nor does it appear that Gary Anderson was the agent of Francis or that Francis had a right to exercise dominion and control over the marijuana while it was in Gary Anderson's physical possession.

Similarly, it does not appear that Francis had physical or [71 Cal.2d 72] constructive possession of the substances Gary Anderson sold to Jones and Roberts.

A conviction for possession of marijuana may be upheld where there is evidence that the defendant aided and abetted another in committing the crime of possession of narcotics. (People v. Hood, 150 Cal.App.2d 197, 201, 309 P.2d 856; People v. Henderson, 121 Cal.App.2d 816, 817--818, 264 P.2d 225; People v. Bigelow, 104 Cal.App.2d 380, 389, 231 P.2d 881.) Here, however, although there is evidence that Francis aided and abetted Gary Anderson in committing the crime of sale of marijuana, 4 no claim is made, and it does not

Page 203

[450 P.2d 595] appear, that there is any evidence that Francis aided and abetted Gary Anderson in committing the crime of possession of marijuana. 'To be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission. He must share the criminal intent with which the crime was committed. The mere presence of the accused at the scene of the crime does not alone establish that the accused was an abettor. * * * In order to hold the accused as an aider and abettor the test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.' (People v. Villa, 156 Cal.App.2d 128, 133--134, 318 P.2d 828, 833.) The record does not show that Francis aided or encouraged Gary Anderson in obtaining or retaining possession of marijuana. So far as appears, when Francis expressed interest in buying marijuana Gary Anderson may already have had possession of the marijuana he later sold; the record shows merely that Gary Anderson stated he would have to go to Bell Gardens to pick it up.

Francis further asserts that there is no evidence that the package He purchased contained marijuana. Although it does not appear that the package Francis received was seized and analyzed, the narcotic character of a substance may, of course, be proved by circumstantial evidence (People v. Ihm, 247 Cal.App.2d 388, 392, 55 Cal.Rptr. 599; People v. Vassar, 207 Cal.App.2d 318, 324, 24 Cal.Rptr. 481), and here the recited evidence clearly constitutes substantial proof that the package Francis purchased contained marijuana.

It is necessary, however, to consider whether possession of [71 Cal.2d 73] that marijuana is an offense necessarily included in the crime charged, namely, selling and giving away marijuana. Penal Code, section 1159 provides that the trier of fact 'may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged * * *.' '(W)here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' (People v. Thomas, 58 Cal.2d 121, 128, 23 Cal.Rptr. 161, 164, 373 P.2d 97, 100; In re Hess, 45 Cal.2d 171, 174, 288 P.2d 5; People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512; see Witkin, Cal. Criminal Procedure, pp. 552--555.) Thus before a lesser offense can be said to constitute a necessary part of the greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense. (People v. Thomas, Supra.) To be necessarily included, the lesser offense must be 'part of the greater in fact' as well as being 'embraced within the legal definition of the greater as a part thereof.' (People v. Kerrick, 144 Cal. 46, 47, 77 P. 711, 712; People v. Lewis, 186 Cal.App.2d 585, 596, 9 Cal.Rptr. 263; People v. McGrath, 94 Cal.App. 520, 522, 271 P. 579.) 5

The elements of the crime of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence of the drug and its narcotic character. (People v. Groom, Supra, 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Gorg, Supra, 45 Cal.2d 776, 780, 291 P.2d 469.) No sale of narcotics is possible without such actual or constructive possession (People v. Rosales, 226 Cal.App.2d 588, 592, 38 Cal.Rptr. 329; People v. Richardson, 152 Cal.App.2d 310,...

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  • People v. Smith
    • United States
    • California Court of Appeals
    • May 17, 1984
    ...included in another when proof of the former involves different elements than proof of the latter (e.g., People v. Francis (1969) 71 Cal.2d 66, 73-74, 75 Cal.Rptr. 199, 450 P.2d 591; see Tideman, supra, 57 Cal.2d 574, 585-586, 21 Cal.Rptr. 207, 370 P.2d 1007). Defendant's argument the secti......
  • People v. Suarez, F070210
    • United States
    • California Court of Appeals
    • December 4, 2017
    ...57 be applied retroactively to Suarez's case. Although Estrada has been broadly applied in the past (see, e.g., People v. Francis (1969) 71 Cal.2d 66, 75–76, 75 Cal.Rptr. 199, 450 P.2d 591 ( Francis ) [applying Estrada to statutory amendment vesting in trial court discretion to impose eithe......
  • City of Lake Forest v. Evergreen Holistic Collective, No. G043909.
    • United States
    • California Court of Appeals
    • March 29, 2012
    ...rest in the possession of every individual at the dispensary authorized to handle or dispense it. (See, e.g., People v. Francis (1969) 71 Cal.2d 66, 73, 75 Cal.Rptr. 199, 450 P.2d 591 [authority to sell or otherwise distribute a narcotic necessarily entails its actual or constructive posses......
  • People v. West, Cr. 14453
    • United States
    • United States State Supreme Court (California)
    • December 3, 1970
    ...offense cannot legitimately claim lack of notice, the court has jurisdiction to convict him of that offense. (People v. Francis (1969) 71 Cal.2d 66, 74--75, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Taylor (1969) 273 Cal.App.2d 477, 485, 78 Cal.Rptr. 51; People v. Blunt (1966) 241 Cal.App.2......
  • Request a trial to view additional results
728 cases
  • People v. Smith
    • United States
    • California Court of Appeals
    • May 17, 1984
    ...included in another when proof of the former involves different elements than proof of the latter (e.g., People v. Francis (1969) 71 Cal.2d 66, 73-74, 75 Cal.Rptr. 199, 450 P.2d 591; see Tideman, supra, 57 Cal.2d 574, 585-586, 21 Cal.Rptr. 207, 370 P.2d 1007). Defendant's argument the secti......
  • People v. Suarez, F070210
    • United States
    • California Court of Appeals
    • December 4, 2017
    ...57 be applied retroactively to Suarez's case. Although Estrada has been broadly applied in the past (see, e.g., People v. Francis (1969) 71 Cal.2d 66, 75–76, 75 Cal.Rptr. 199, 450 P.2d 591 ( Francis ) [applying Estrada to statutory amendment vesting in trial court discretion to impose eithe......
  • City of Lake Forest v. Evergreen Holistic Collective, No. G043909.
    • United States
    • California Court of Appeals
    • March 29, 2012
    ...rest in the possession of every individual at the dispensary authorized to handle or dispense it. (See, e.g., People v. Francis (1969) 71 Cal.2d 66, 73, 75 Cal.Rptr. 199, 450 P.2d 591 [authority to sell or otherwise distribute a narcotic necessarily entails its actual or constructive posses......
  • People v. West, Cr. 14453
    • United States
    • United States State Supreme Court (California)
    • December 3, 1970
    ...offense cannot legitimately claim lack of notice, the court has jurisdiction to convict him of that offense. (People v. Francis (1969) 71 Cal.2d 66, 74--75, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Taylor (1969) 273 Cal.App.2d 477, 485, 78 Cal.Rptr. 51; People v. Blunt (1966) 241 Cal.App.2......
  • Request a trial to view additional results

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