People v. Glass

• Decision Date: 21 January 1975
• Docket Number: Cr. 1752
• Citation: 118 Cal.Rptr. 797,44 Cal.App.3d 772
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leonard Eugene GLASS, Defendant and Appellant.

Page 797

118 Cal.Rptr. 797

44 Cal.App.3d 772

The PEOPLE, Plaintiff and Respondent, v. Leonard Eugene GLASS, Defendant and Appellant.

Cr. 1752.

Court of Appeal, Fifth District, California.

Jan. 21, 1975.

Richard E. Salisch, Fresno, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Eddie T. Keller, Willard F. Jones and Peter McGrian, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant was convicted by a jury of possession of amphetamines for sale (Health & Saf. Code, § 11351) and was found not guilty of possession of hypodermic syringes (Bus. & Prof.Code, § 4143, subd. (a)). On this appeal from the judgment he urges insufficiency of the evidence to support the verdict and misconduct of the prosecutor. We find merit in his contentions and reverse the judgment.

To support a conviction of possession of amphetamines for sale, it must be shown that the appellant exercised control or had the right to exercise control over the controlled substance, that he had knowledge of the presence of the controlled substance, that he had knowledge of its nature, and that he had the specific intent to sell the same. (People v. Newman (1971) 5 Cal.3d 48, 52--53, 95 Cal.Rptr. 12, 484 P.2d 1356.)

These elements may be established by circumstantial evidence and any reasonable inferences drawn therefrom. (People v. Newman, Supra, 5 Cal.3d at p. 52, 95 Cal.Rptr. 12, 484 P.2d 1356.)

Resolving all conflicts in favor of the respondent, the proof in this case showed that sheriff's deputies went to the residence at 4919 Sammons Street, Bakersfield, at about 11:30 a.m. to execute a search warrant for the premises and the person of the appellant. After knocking on the door and ringing the doorbell for about five minutes, Delores Shrout, ¹ dressed in a robe and barefooted, opened the door. The deputies entered and began the search.

In about 60 seconds after entry, the deputies entered the bedroom area and saw appellant lying on the bed; the bottom one-half of his torso was covered with blankets. When appellant saw the officers he pulled the bed covers over his entire body, including his head. Upon orders, appellant exited the bed; he was wearing a pair of Levi trousers and was also barefooted. Appellant was ordered into the living room area and instructed to be seated on the couch.

A search of the house revealed the following contraband: (1) As appellant got out of bed, several small white tablets fell to the floor and landed near a man's shirt. There were no tests made to determine the contents of these tablets. (2) Near the pillow area of the bed several more white tablets were found, and under the pillow a plastic vial and bag were found containing a total of 15.58 grams of tablets containing amphetamines. (3) A package and cellophane cigarette wrapper containing a total of 1.83 grams of tablets containing amphetamines were seized from the coffee table in the living room. (4) A cigarette package containing 2.29 grams of tablets containing amphetamines was seized from Delores Shrout's purse. (5) A cigarette package containing 3.50 grams of tablets containing amphetamines was found in a vehicle parked on the premises which was registered to Delores Shrout. (6) Under the couch in the living room one large bag was found containing 16 packages, 8 of which contained 100 amphetamine tablets each and 8 of which contained 1,000 amphetamine tablets each, a total of 228.49 grams of tablets. (7) Some hypodermic needles and syringes were found in a sugar bowl and bowl of flour in the kitchen area.

Appellant had $270 in small bills on his person.

THE SUFFICIENCY OF THE EVIDENCE

While the presence of the amphetamines found in and around the bed where appellant had been lying and the act of pulling up the bed covers over his entire body, including his head, would be sufficient to support a conviction for simple possession (People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal.Rptr. 530, 485 P.2d 1146; People v. MacCagnan (1954) 129 Cal.App.2d 100, 104--106, 276 P.2d 679), the quantity and manner of packaging of the tables found in that area would not support a conviction for possession for sale. (See People v. Newman (1971) 5 Cal.3d 48, 53, 95 Cal.Rptr. 12, 484 P.2d 1356.) Of the amphetamine tablets found, the only ones that were of sufficient quantity or so packaged as to support a conviction of purpose or intent to sell were those found beneath the couch in the living room. (People v. Newman, Supra, 5 Cal.3d at p. 53, 95 Cal.Rptr. 12, 484 P.2d 1356.) Regarding those 16 bags of tablets, one of the officers who was familiar with packaging procedures in the drug traffic testified that the eight small bags containing 100 tablets each were ordinarily sold illegally on the retail level, while the large bags containing 1,000 tablets each were normally sold illegally on a wholesale basis. There was no testimony with respect to the tablets found elsewhere, and the respondent does not contend that the tablets other than those under the couch were in such quantity or were so packaged as to support a conviction of intent or purpose to sell.

We are satisfied that the evidence was insufficient to support a finding that appellant had actual or constructive possession of the amphetamines under the couch. Constructive possession occurs when one maintains control or the right to control the contraband; and while possession may be imputed when the contraband is immediately and exclusively accessible to the accused and subject to his dominion and control or the joint dominion and control of the accused and another (People v. Newman, Supra, 5 Cal.3d at p. 52, 95 Cal.Rptr. 12, 484 P.2d 1356; People v. Harrington (1970) 2 Cal.3d 991, 998, 88 Cal.Rptr. 161, 471 P.2d 961; People v. Francis (1969) 71 Cal.2d 66, 71, 75 Cal.Rptr. 199, 450 P.2d 591), there is no substantial evidence to support a finding that appellant resided at or was a joint possessor of the premises at 4919 Sammons Street or that the amphetamines beneath the couch were subject to his dominion and control.

He was discovered half-clad in bed at 11:30 a.m. Other than his boots and shirt on the bedroom floor, no other men's clothing was discovered in the residence. No letters or documents were found addressed to appellant at that address. All documents found at the house were addressed to Delores Shrout, including a Pacific Telephone bill and a payroll check. The most that can be inferred from this evidence is that appellant was a visitor at the residence on the morning of the arrest; the usual inferences that may be drawn from joint possession and control of the premises where drugs are found are impermissible in this case.

Thus, with respect to the amphetamines beneath the couch, the proof amounted to no more than an opportunity of access to a place where narcotics were found which, without more, is insufficient to support a finding of unlawful possession. (People v. Redrick (1961) 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Vasquez (1969) 1 Cal.App.3d 769, 778, 82 Cal.Rptr. 131, cert. den. 398 U.S. 938, 90 S.Ct. 1840, 26 L.Ed.2d 270.)

In a caveat to a statement of the substantial evidence rule, the Supreme Court in People v. Redmond (1969), 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 534, 457 P.2d 321, 326, said: 'Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.' While the elements of the offense may be established by circumstantial evidence and reasonable inferences drawn therefrom (People v. White (1969) 71 Cal.2d 80, 83, 75 Cal.Rptr. 208, 450 P.2d 600), 'Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.' (People v. Redrick, Supra, 55 Cal.2d at p. 290, 10 Cal.Rptr. at p. 828, 359 P.2d at p. 260.)

In the case at bench the missing links were lack of proof of possession of or knowledge that the tablets were beneath the couch. (See People v. Redrick, Supra, 55 Cal.2d at pp. 285--287, 10 Cal.Rptr. 823, 359 P.2d 255, and cases cited therein; People v. Hutchinson (1969) 71 Cal.2d 342, 345--346, 78 Cal.Rptr. 196, 455 P.2d 132, cert. den. 396 U.S. 994, 90 S.Ct. 491, 24 L.Ed.2d 457; People v. Hunt (1971) 4 Cal.3d 231, 236--237, 93 Cal.Rptr. 197, 481 P.2d 205; People v. Stanford (1959) 176 Cal.App.2d 388, 391, 1 Cal.Rptr. 425; People v. Tabizon (1958) 166 Cal.App.2d 271, 273, 332 P.2d 697.)

The presence of $270 in appellants' wallet would have some probative effect as circumstantial evidence if it was shown appellant was unemployed (People v. Magdaleno (1958) 158 Cal.App.2d 48, 52, 322 P.2d 89). However, no such showing was made in this case.

Respondent argues that knowledge of the presence of the pills and dominion and control over the pills under the couch can be inferred from the fact that appellant was seated on the couch and made some movement with his feet. (See People v. Williams (1971) 5 Cal.3d 211, 216, 95 Cal.Rptr. 530, 485 P.2d 1146.) Officer Gutierrez testified:

'Q And was there any type of reaction from Mr. Glass when you removed that bag?

'A No, sir, I was in the living room area and I noticed that he was maneuvering with his feet and at that time I saw the bag and I just walked in and removed the bag and there was no reaction from him at all.'

Initially, it must be noted that appellant was seated on the couch at the direction of the officers and not by choice. Secondly, it is significant that he manifested no reaction whatsoever when the officer reached beneath the couch and...