People v. Jenkins

• Citation: 154 Cal.Rptr. 309,91 Cal.App.3d 579
• Decision Date: 04 April 1979
• Docket Number: Cr. 32277
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George Calvert JENKINS, Defendant and Appellant.
• Court: California Court of Appeals

Page 309

154 Cal.Rptr. 309

91 Cal.App.3d 579

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Calvert JENKINS, Defendant and Appellant.

Cr. 32277.

Court of Appeal, Second District, Division 5, California.

April 4, 1979.

Billy H. Hairston, Inglewood, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, John A. Saurenman, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

After a court trial, defendant was found guilty of one count of manufacturing phencyclidine ("PCP") (Health & Saf.Code § 11379) and one count of possession of piperidine and cyclohexanone with the intent to manufacture phencyclidine (Health & Saf.Code § 11383(b)). He was sentenced to state prison for a term of four years.

Defendant's main argument on appeal is that the evidence does not support his conviction.

FACTS

The case arose when police officers on July 26, 1977, discovered a laboratory apparently used for the manufacture of PCP. The laboratory was in a detached garage located behind a house at 3546 Gale Avenue in Long Beach, the residence of defendant's brother Gregory Jenkins and Gregory's girlfriend.

The police entered the garage through a slightly opened door and found various beakers, bottles, vials and cans containing an impressive array of chemicals: cyclohexanone, cyanide, magnesium, iodine crystals, bromobenzene, hydrochloric acid, petroleum ether, piperidino-cyclohexane carbonitrate, and PCP. Fingerprints were lifted from twelve of the laboratory items. Fingerprints of defendant's brother Gregory were found on an empty plastic beaker, and on a 500 milliliter glass which contained an unidentified liquid. Defendant's prints were found on three items: (1) a partial palm print was found on the lid of a five pound plastic bottle containing sodium cyanide; (2) a right middle finger print was lifted from a 6000 milliliter flask which contained an unidentified residue; (3) prints of his right thumb, right index and right middle finger were found on a sixteen ounce vial which bore the label "sodium bisulfate."

Long Beach Police Sergeant James Sutton went to speak to defendant at the Long Beach jail, where defendant was being held under arrest for an unrelated offense. Defendant denied that his name was George Jenkins and claimed that he was Anthony Jenkins, the name he had given when booked on the unrelated charge. In answer to specific questions, he told Sergeant Sutton that he was not involved with the manufacture of PCP at his brother's residence, that he had not assisted his brother in setting up the laboratory, and that he had not handled any of the containers in the laboratory. When Sergeant Sutton told defendant that his fingerprints had been found on several of the containers, defendant "could give no reason" for that fact and again denied handling anything in the lab.

At trial, an expert chemist testified that in his opinion the chemicals found in the garage were there for the purpose of manufacturing PCP. Specifically, he stated that the necessary ingredients for compounding phencyclidine were peperidinocyclohexane carbonitrite, petroleum benzene, and magnesium.

Testifying in his own defense, defendant continued to deny any knowledge of the laboratory or of how his fingerprints had got on the items found there.

DISCUSSION

As noted, defendant claims that the evidence was inadequate to support either the conviction of manufacturing PCP or of possessing piperidine and cyclohexanone with the intent to manufacture PCP. ¹ We first consider the sufficiency of the evidence on the possession count.

Before analyzing the sufficiency of the facts that were proved, it should be kept in mind just what the prosecution did not prove: (1) there was no evidence of the age of the fingerprints which were lifted from the containers in the garage; (2) there was no direct evidence where those containers were when defendant touched them; (3) there was no direct evidence of what was in the containers when defendant touched them; (4) there was no evidence, direct or indirect, that the contents of the containers touched by defendant were used in the manufacture of PCP. It is also noted that the fact that defendant gave Officer Sutton a false name is of no probative value as to the offenses involved in this case, since defendant had supplied that false name when he was earlier arrested on an unrelated offense.

The elements of the offense of possession of restricted drugs are physical or constructive possession with knowledge of the presence and narcotic character of the drug. (People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal.Rptr. 530, 485 P.2d 1146.) In addition, Health and Safety Code section 11383(b) required that the chemicals be possessed with the intent to manufacture PCP.

There clearly was no evidence that defendant physically possessed the substances in question. As far as constructive possession may be imputed when the contra-when the accused maintains control or a right to control the contraband; possession is "imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (People v. Newman (1971) 5 Cal.3d 48, 52, 95 Cal.Rptr. 12, 15, 484 P.2d 1356, 1359, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862, 122 Cal.Rptr. 872, 537 P.2d 1232.)

In the present case, the People sought to prove defendant's access to the piperidine-cyclohexanone compound by the fact that his fingerprints were on three containers containing other substances, which were, however, constituents of a laboratory in which PCP was being manufactured. While the portability of the containers would permit equally plausible inferences that defendant touched them at a place other than the garage or at a time when the piperidine and cyclohexanone were not in the garage, the choice among the several permissible inferences from circumstantial evidence was for the trier of fact, not us. (People v. Redrick (1961) 55 Cal.2d 282, 289-290, 10 Cal.Rptr. 823, 359 P.2d 255.)

On the other hand, there is a limit to the mileage that can be obtained from the fingerprint evidence. The only fact directly inferable from the presence of the fingerprints is that sometime, somewhere defendant touched the containers. While given all the circumstances it was not unreasonable for the court to infer from the fingerprints that defendant was present in the garage when the piperidine-cyclohexanone compound was also there, more than mere presence must be shown in order to prove constructive possession: the People must also show that defendant had dominion and control over the contraband. (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 inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence (see, e. g., People v. Bagley (1955) 133 Cal.App.2d 481, 484-485, 284 P.2d 36), his automobile (see, e. g., People v. Newman, supra, 5 Cal.3d at p. 53, 95 Cal.Rptr. 12, 484 P.2d 1356), or his personal effects (see, e. g., People v. Bass (1952) 110 Cal.App.2d 281, 284, 242 P.2d 685.) However, when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant's presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character. Thus in People v. Stanford, supra, the evidence showed that codefendant Coleman was visiting Stanford's house and was present in the bathroom during a sale of heroin by Stanford to another man. A bindle of heroin was later found in the bathroom. The court reversed Coleman's conviction of possession of heroin, stating, "There is no basis for an inference that Coleman had constructive possession of the narcotics found in the bathroom for he did not have possession or control of the premises." (Id., 176 Cal.App.2d at p. 391, 1 Cal.Rptr. at p. 427); see also (People v. Tabizon, supra; People v. Hancock (1957) 156 Cal.App.2d 305, 310, 319 P.2d 731.)

In sum: even if the fingerprint evidence is interpreted as it evidently was to place defendant in the garage at a time when the substances prohibited by section 11383(b) of the Health and Safety Code were also present in that room, it furnishes no evidence of (1) possession, actual or constructive, (2) knowledge, or (3) intent to manufacture PCP. The People's brief bridges these formidable evidentiary gaps by stating simply that "(a)ppellant's involvement...