People v. Melendez, Cr. 4350

• Decision Date: 20 February 1964
• Docket Number: Cr. 4350
• Citation: 225 Cal.App.2d 67,37 Cal.Rptr. 126
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Santiago T. MELENDEZ, Defendant and Appellant.

Page 126

37 Cal.Rptr. 126

225 Cal.App.2d 67

PEOPLE of the State of California, Plaintiff and Respondent, v. Santiago T. MELENDEZ, Defendant and Appellant.

Cr. 4350.

District Court of Appeal, First District, Division 1, California.

Feb. 20, 1964.

Benjamin M. Davis, San Francisco, George Franklyn Duke, San Francisco, of counsel, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Michael R. Marron, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal by defendant from a judgment of conviction for violation of Health and Safety Code section 11530, i. e., possession of marijuana. The sole question presented is whether the evidence is sufficient to prove defendant guilty of possessing marijuana. The case was tried without a jury, and, aside from the testimony of a forensic chemist produced by the People, was, pursuant to stipulation, submitted to the court below upon the testimony presented at the preliminary hearing in the municipal court.

The evidentiary background is as follows: On September 8, 1962, Police Officer Charles Anderson, in company with another officer, ¹ responded to a call reporting an altercation in the hallway of the Hudson Hotel in San Francisco. Upon arrival, the officers observed defendant and a woman in a hallway of the hotel. The woman stated to the officers that she was afraid of defendant because he was 'going to shoot her with some white powder, and put her to sleep.' Anderson examined the woman's arms and observed '[n]umerous apparent needle punctures in them,' near or about the crook of the arm. The woman denied using narcotics. During this conversation defendant and the woman were in the hallway outside defendant's hotel room, ² the door to which was slightly ajar. The woman requested Anderson to accompany her so that she could get her purse, and he thereupon followed her into the room. There was no one else in the room. Anderson observed, on a night stand and in full view, a syringe, a hypodermic needle, and several vials or ampules which were labeled 'methedrine.' At this point, defendant, who had remained in the hallway, was requested to come into the room. Confronted with the syringe and the ampules found on the night stand defendant admitted that they were his. He produced another container bearing his name and containing more ampules. When asked to verify his name, defendant produced a driver's license. He also produced from his wallet a prescription label bearing a different name. At that time he also showed the officers prescriptions for some of the methedrine ampules. The officers thereupon proceeded to make a search of the room. Anderson's partner found a brass pipe which he called to Anderson's attention. Anderson testified that he saw the pipe in his partner's hand; that it was found in his 'immediate presence * * *.' After stating that he 'believed' that the pipe was in the drawer of the dresser, to which answer defendant's counsel interposed a motion to strike, Anderson testified as follows: 'My partner was investigating the dresser, and I know he opened the drawer but whether he took the pipe from the top of the dresser, or out of the drawer he opened I couldn't say.' ³ This pipe was described as consisting of two pieces of brass connected by a piece of bamboo 'in the shape of a right angle cigarette holder * * *.'

Other than hereinabove narrated, Anderson could recall no other conversation with defendant. He stated that he did not believe that there had been any conversation relative to the subject contraband, or the evidence in question. The pipe was delivered to the crime laboratory. John F. Williams, a forensic chemist, whose qualifications as an expert were stipulated to, testified that when he received the pipe it 'had an odor of burnt material which was similar to burnt marijuana'; and that there was a small amount of black material in the brass and wooden portions of the pipe which was extracted and chemically tested; that what he saw was a black substance 'like the heel of an ordinary pipe'; that it was a gummy material with some ash, similar to 'anything else that is burned'; that had the material been scraped out and weighed '[i]t would have been a matter of a few milligrams or a very small fraction of a gram at most'; that for the purposes of the chemical tests some of the material was scraped from the brass portion which constituted the bowl, and some was soaked from the side of the bamboo or stem; that the black material was examined under a low power microscope and that no plant structure was noted; that there were no actual plant parts in the pipe; that the chemical tests disclosed the residue of 'active ingredients from marijuana'; that the tests proved that marijuana had been in the pipe at some time or other and that now some of the 'active ingredients remained'; and that these ingredients consisted of 'certain compounds which are present in marijuana.' ⁴

The foregoing evidentiary narrative must be considered in the light of the well-established principle that in a prosecution for unlawful possession of narcotics the People must prove that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. (People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Gorg, 45 Cal.2d 776, 780, 291 P.2d 469; People v. Gory, 28 Cal.2d 450, 454, 170 P.2d 433; People v. Tabizon, 166 Cal.App.2d 271, 273, 332 P.2d 697; People v. Rodriguez, 151 Cal.App.2d 598, 601, 312 P.2d 272.) Accordingly, the crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance and knowledge of the narcotic character of the article possessed. (People v. Winston, 46 Cal.2d 151, 160-161, 293 P.2d 40; People v. Gory, supra, 28 Cal.2d p. 456, 170 P.2d 433.)

Although the parties to this appeal have argued to some extent the question whether defendant had exclusive access to the room in question, and whether, if such access was non-exclusive, there were other evidentiary factors present sufficient to support a finding of knowing possession on the part of defendant, the principal question on this appeal is whether the possession of the subject smoking pipe, from which a gummy black material extracted therefrom was determined by chemical tests to contain certain active ingredients found in marijuana, constitutes the knowing possession of the narcotic itself. Stated more succinctly, the question for determination is whether the People's evidence was sufficient as a matter of law to convict defendant of 'possession' of marijuana, because of the nature and state of the substance claimed by the prosecution to be a narcotic.

This very same question was presented to the reviewing court in People v. Aguilar, 223 A.C.A. 120, 35 Cal.Rptr. 516, recently decided. ⁵ The appellate court there held that where a narcotic is imperceptible to the human eye, and its presence, qualitatively and quantitatively, can be detected only with the aid of a forensic chemist and laboratory, the evidence is not sufficient to sustain a conviction of known possession of the narcotic. The rationale of Aguilar is that: 'It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the prohibited narcotic in articles possessed by the defendant.' (223 A.C.A. pp. 123-124, 35 Cal.Rptr. p. 519.) Accordingly, the essence of the holding in Aguilar is that '[t]he presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' (223 A.C.A. p. 124, 35 Cal.Rptr. p. 519; emphasis added.)

In Aguilar, a motel room occupied by the defendant and his brother was searched by officers who found packages containing hypodermic needles, spoons and eye droppers. A forensic chemist testified that he examined "debris" (scrapings) found on...