People v. Hunt

• Citation: 93 Cal.Rptr. 197,4 Cal.3d 231,481 P.2d 205
• Decision Date: 01 March 1971
• Docket Number: Cr. 15113
• Court: California Supreme Court
• Parties: , 481 P.2d 205 The PEOPLE, Plaintiff and Respondent, v. Harry Edgar HUNT, Defendant and Appellant.

Page 197

93 Cal.Rptr. 197

4 Cal.3d 231, 481 P.2d 205

The PEOPLE, Plaintiff and Respondent, v. Harry Edgar HUNT, Defendant and Appellant.

Cr. 15113.

Supreme Court of California,

In Bank.

March 1, 1971.

Harry Edgar Hunt, in pro. per.; R. Jay Engel, San Francisco, under appointment by the Supreme Court, and John R. Sheehan, Burbank, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., William H. Waysman and Jimmie E. Tinsley, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

A jury found Harry Edgar Hunt guilty of one count of unlawful possession for sale of a restricted dangerous drug, methedrine, and not guilty of unlawful possession of restricted dangerous drugs, Nembutal and amphetamine. (Health & Saf. Code, §§ 11911, 11910.) He appeals from the ensuing judgment. ¹

On February 7, 1968, Officer Clifford W. Owens and several other officers went to the apartment of Alan Hall. Upon entering the bedroom of the apartment, Officer Owens saw Hall and defendant. Defendant was seated on a chair with a hypodermic needle in his right arm. The officer removed the needle and a 3--cc. syringe, which contained 2 ccs. of methedrine. At his feet was an open blue and white travel case. In the travel case were four 30--cc. vials, a little plastic box with four capsules and three tablets, some needles, and four envelopes with disposable syringes. One of the vials was not full.

The four vials contained methedrine, the yellow capsules contained pentobarbital and the tablets contained amphetamine.

The four vials were labelled with pharmacy labels. Each had a prescription number, defendant's name, and the physician's name, Dr. Smith. One vial was dated January 16, 1968, another January 30, 1968, and two January 20, 1968. It was stipulated that defendant had had prescriptions filled for four vials of methedrine since January 20.

When the officer entered the bedroom, Hall was seated in a chair near a bed. He appeared to be under the influence of a dangerous drug. He had a notebook in his left hand and a pen in his right. On a bed in front of him, there was a brown leather suitcase, which was about two feet from him. The suitcase was open. It contained some men's clothing, balls of cotton, two Bayer aspirins, some syringes and needles, four vials of methedrine, one vial of amphetamine, a portion of a prescription label with Hall's name on it, pentobarbital and secobarbital capsules, and amphetamine tablets. ² Only one of the vials had a drug store label on it. The officer subsequently found seven pharmacy labels in Hall's wallet. Six dollars were lying on the bed between Hall and the suitcase. ³

The notebook held by Hall had a number of entries in it such as '2--5--68, pay $20 for deal on two vials of meth,' with the number '9008.' None of the entries stated that anything was sold.

Officer Owens had extensive training, education, and experience relating to the possession of and trafficking in dangerous drugs. He said that users of methedrine use up to 8 ccs. a day. He said that, although there were numerous variations in individual transactions, the going price for the illegal sale of methedrine was about $30 for a 30--cc. vial and $6.00 for a 'fix' of 2 ccs. The price of methedrine at a pharmacy pursuant to a prescription was much lower. He also said that the entries in the notebook reflected transactions in dangerous drugs.

Officer Owens testified that based upon his experience it was his opinion that the methedrine found in the blue and white travel case and in the brown suitcase was possessed for sale. He said that his opinion was due 'to the quantity involved, the over-all street value, the normal use by an individual.'

Dr. Smith, who had been practicing in Los Angeles since 1918, prescribed methedrine for his patients on a number of occasions, usually prescribing 1 cc. in the morning and one in the evening. He did not recall ever prescribing more than that. He would prescribe two 30--cc. vials and often allowed for refills of prescriptions. He identified seven prescriptions for Hall and two for defendant and said he occasionally phoned prescriptions to the pharmacy.

Defendant's testimony may be summarized as follows: He was 35 years old and had been using methedrine since 1965. He had never purchased methedrine illegally but purchased it at a drug store upon prescription. He had never sold methedrine to anyone and had no intent to sell to defendant Hall or anyone else. He was using about 9 ccs. of methedrine a day, three in the morning, at noon, and in the evening. He estimated the four vials in his case as about a week's supply. He needed the drug for lethargy, a type of narcosis. He had met Hall at Dr. Smith's office, and while waiting for the doctor they had discussed music. Hall had invited him to the apartment to see a stereo complex, and at the time of his arrest he had been there about an hour listening to music. When the officers entered he was injecting himself with methedrine. He was living at a motel, and when away from the motel he carried the drugs in the trunk of his automobile because he was aware that they were dangerous drugs and he wanted to maintain control over them and because he often worked long hours and took the medicine while working. His job was constructing booths and setting up exhibits for shows, and he sometimes worked as much as 24 consecutive hours.

Section 11911 of the Health and Safety Code provided in 1968: 'Except as otherwise provided in Article 8 (commencing with Section 4210), Chapter 9, Division 2 of the Business and Professions Code, every person who possesses for sale any restricted dangerous drug shall be punished by imprisonment in the state prison for not less than one year * * *.' This section dealing with possession for sale of restricted drugs, unlike the immediately preceding one relating to possession of such drugs, does not contain an exception for drugs possessed upon a prescription. Section 11912 of the Health and Safety Code dealing with sale, furnishing, manufacturing, or transporting of restricted dangerous drugs also contains an exception for prescriptions.

The omission of any exception for drugs obtained by prescription in section 11911 must be understood as meaning that a person may be convicted under the section who has obtained a drug by prescription but possesses the drug for sale to another without prescription. (Cf. People v. Kessler, 250 Cal.App.2d 642, 645, 58 Cal.Rptr. 766.)

The elements of a violation of section 11911 of the Health and Safety Code are possession of the dangerous drug for the purpose of selling it. (People v. Allen, 254 Cal.App.2d 597, 600--601, 62 Cal.Rptr. 235.) In determining sufficiency of evidence under section 11911, precedents relating to possession for sale of narcotics are relevant. (People v. Allen, Supra, 254 Cal.App.2d 597, 600--601, 62 Cal.Rptr. 235.) To establish unlawful possession, it must be shown that the accused exercised dominion and control over the drug. (People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255.)

Possession of dangerous drugs may be found to be joint in appropriate circumstances (cf. Rideout v. Superior Court of Santa Clara County, 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197), and, although the fact of access by several persons is a matter to be considered, no sharp line can be drawn to distinguish the congeries of facts which will and will not permit a finding of joint or constructive possession based on access. Proof of access to the place where the drugs are found, without more, is not sufficient to support a finding of unlawful possession. (Cf. People v. Harrington, 2 Cal.3d 991, 998, 88 Cal.Rptr. 161, 471 P.2d 961; People v. Redrick, Supra, 55 Cal.2d 282, 285--288, 10 Cal.Rptr. 823, 359 P.2d 255.)

Although the evidence is clear that defendant had possession of the methedrine in the blue and white travel case at his feet, there is no substantial evidence to show that he had joint or constructive possession of the drugs found in the brown suitcase near Hall. All of the circumstances in the instant case indicate that the drugs in the brown suitcase near Hall were in his possession and not defendant's.

The brown suitcase was near Hall. Nothing in the brown suitcase had defendant's name upon it. One of the vials of methedrine and a prescription label in the brown suitcase had Hall's name on it. At the time of arrest, Hall, according to the officer, appeared to be under the influence of a drug like methedrine. Hall had in his hand a book which recited certain drug transactions. During the five weeks preceding arrest Hall had purchased 540 ccs. of methedrine.

On the other hand, all of the methedrine found at defendant's feet was labelled in his name, and other things found there had his name on them. Nothing in the travelling case had Hall's name on it. There is no evidence that defendant and Hall were in business together, and defendant did not live in the apartment. In these circumstances, the only fair inference is that the matters in the brown suitcase belonged to Hall alone and the articles in the blue and white travelling case belonged to defendant alone.

At oral argument the deputy attorney general stated that he did not rely on the theory that defendant was in joint possession of the brown suitcase and stated he was relying on the officer's opinion that the methedrine found in the travel case, at the feet of defendant, was possessed for sale.

The conviction of defendant cannot be upheld on the theory that defendant's conceded possession of the methedrine in the travel case and in the syringe he was using was a possession for sale. Although the officer testified that in his opinion the methedrine was possessed for sale, his testimony in the circumstances of this case may not be held to be substantial evidence to support the...