People v. Johnson

• Decision Date: 27 July 1984
• Docket Number: Cr. 44004
• Citation: 158 Cal.App.3d 850,204 Cal.Rptr. 877
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Ernest JOHNSON, Defendant and Appellant.

Page 877

204 Cal.Rptr. 877

158 Cal.App.3d 850

The PEOPLE, Plaintiff and Respondent, v. James Ernest JOHNSON, Defendant and Appellant.

Cr. 44004.

Court of Appeal, Second District, Division 7, California.

July 27, 1984.

Roger J. Rosen, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Howard J. Schwab and Jane M. Began, Deputy Attys. Gen., for plaintiff and respondent.

THOMPSON, Acting Presiding Justice.

Defendant James Johnson appeals from the judgment of conviction by jury trial of possession of phencyclidine (PCP) for sale (Health & Saf.Code, § 11378.5). Defendant contends the evidence is insufficient to support his conviction. Because we agree there is no substantial evidence of defendant's possession of the contraband, we must reverse the conviction. ¹

Facts

The evidence, viewed in the light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738) showed that on April 16, 1981, at about 9:30 p.m., Los Angeles police officers, under the authority of a search warrant, forced entry into a sparsely furnished four-room residence in a low-income area of the city. The house was located at 1025 1/2 W. 95th Street. The officers found six or seven people "milling around" in the main room of the house. Defendant and a woman were standing in the kitchen. A search of the bathroom disclosed a Listerine bottle containing 60 milliliters of PCP. On top of the dresser in the main room the officers found two boxes containing a total of 9 1/2 Sherman cigarettes. ²

During the search of the kitchen, the officers noticed a small hole in an overhang in the ceiling, 6 1/2 to 7 feet above the floor. In order to see inside, the six-foot officer utilized a cinder block which was lying prone on the floor against the wall "a little bit off centered" from the hole. The officer stood the 6"' X 18"' block up vertically on its end, adjusted it under the hole, stepped upon the block, and then shined a flashlight into the hole. He then stuck his hand into the hole to the right side and retrieved two bottles which had not been visible from the kitchen floor. The bottles consisted of a clear glass cylindrical bottle, 5 inches long, containing 30 milliliters (approximately one ounce) of PCP and a one-half pint gin bottle containing 80 milliliters of PCP.

A latent print lifted from the glass bottle containing 30 milliliters of PCP matched defendant's left thumb. Other prints on the bottle were not clear enough to be identifiable. These prints were superimposed on top of one another. The fingerprint expert, Appleby, concluded that since there were no prints on top of defendant's print, no one could have touched that "same exact spot" on that particular bottle after defendant did. The expert also testified, however, that it was "impossible" to establish how long defendant's fingerprint had been on the surface of the bottle or whether there was anything inside the bottle at the time the print was placed on it.

The police in their search of the house did not find any rent receipts or utility bills in defendant's name or in the name of the other persons found in the house. Defendant was searched but no key to the residence was found on him. ³ There was soiled clothing on the floor in various areas of the house but no evidence that any of the clothes belonged to defendant. The police claimed they could not determine who owned the property. They had not investigated the county records to determine ownership. The police had seen defendant in the front yard of the house three days before the search. They had never seen defendant nor anyone else make a PCP sale from that location, however.

Discussion

The record does not contain substantial evidence from which a reasonable trier of fact could rationally conclude beyond a reasonable doubt that defendant was guilty of possessing PCP for sale. (See People v. Johnson, supra, 26 Cal.3d at p. 578, 162 Cal.Rptr. 431, 606 P.2d 738.) Evidence to be substantial must be reasonable in nature, credible and of solid value. (Id., at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.) The evidence of possession in the case was not substantial.

The elements of the offense of possession of PCP or other restricted drugs for sale are physical or constructive possession with knowledge of the presence and narcotic character of the drugs (People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal.Rptr. 530, 485 P.2d 1146; People v. Jenkins (1979) 91 Cal.App.3d 579, 583, 154 Cal.Rptr. 309) for the purpose of sale (see People v. Shipstead (1971) 19 Cal.App.3d 58, 77, 96 Cal.Rptr. 513). To establish possession, it must be shown that the accused exercised dominion and control over the contraband. (People v. Hunt (1971) 4 Cal.3d 231, 236, 93 Cal.Rptr. 197, 481 P.2d 205.)

Here, there was no evidence defendant physically possessed the substance in question. Nor was there solid credible evidence of his constructive possession. Constructive possession "occurs when the accused maintains control or a right to control the contraband; possession may be 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, 484 P.2d 1356, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862, 122 Cal.Rptr. 872, 537 P.2d 1232.)

Defendant's presence in the kitchen was not enough to show his constructive possession of the PCP in the bottles found in the hole in the ceiling. "[M]ore than mere presence must be shown in order to prove constructive possession...." (People v. Jenkins, supra, 91 Cal.App.3d 579, 584, 154 Cal.Rptr. 309.)

In Jenkins, Justice Kaus writing for Division Five of the Second District Court of Appeal explained: "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 [citation], his automobile [citation], or his personal effects [citation]. 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." (Ibid.)

There was no evidence presented from which to reasonably infer defendant's exclusive or joint dominion and control. Defendant, as only one of nine persons found in the house, cannot be deemed to have exclusive access to the contraband. The bottles containing PCP were not even visible from defendant's vantage point in the kitchen. If the six-foot police officer could not reach or see inside that hole without standing on an 18-inch upended cinder block, certainly defendant, who was no more than 5'8"' tall, could not.

Moreover, the record is strikingly devoid of any solid evidence that defendant owned, rented or in any way occupied the premises. The police admitted they had not even bothered to investigate the county records to find out who owned the house. The officer did testify local PCP dealers concealed possession of a drug house by having a girlfriend go down to open up utilities, using someone else's name. But this testimony does not give rise to a reasonable inference defendant exercised dominion and control since there was no evidence whatsoever that he rented the house or opened up the utilities, either directly or through anybody else, such as a girlfriend. Nor does the prosecution evidence, that police saw defendant outside the house in the yard three days before, raise an inference defendant owned or lived at the premises. He could just as easily have been a guest. Furthermore, the police never saw defendant make a drug sale from the residence. And there was no evidence defendant had a key to the residence or that any of the clothing found inside was his.

The People rely on the fact that a thumbprint of defendant's was found on the bottle containing 30 milliliters of PCP. But, as was pointed out in People v. Jenkins, supra, 91 Cal.App.3d at page 584, 154 Cal.Rptr. 309, "there is a limit to the mileage that can be obtained from the fingerprint evidence." The Jenkins court held that evidence that a defendant's fingerprint had been found on three containers which were "constituents of a laboratory in which PCP was being manufactured," located in his brother's garage, was insufficient to support either the conviction of manufacturing PCP...