People v. Prescott

• Decision Date: 16 January 1968
• Docket Number: Cr. 11870
• Citation: 257 Cal.App.2d 843,65 Cal.Rptr. 366
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Billy Charles PRESCOTT, Defendant and Appellant.

Page 366

65 Cal.Rptr. 366

257 Cal.App.2d 843

The PEOPLE, Plaintiff and Respondent, v. Billy Charles PRESCOTT, Defendant and Appellant.

Cr. 11870.

Court of Appeal, Second District, Division 4, California.

Jan. 16, 1968.

Hearing Denied March 13, 1968.

Molly H. Minudri, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lola M. McAlpin, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

Defendant was tried by a jury and found guilty of two narcotics offenses, selling heroin (Health & Saf.Code, § 11501) and possessing it for purpose of sale (Health & Saf.Code, § 11500.5). The court denied a motion for new trial but reduced each offense to the lesser included offense of simple possession of narcotics (Health & Saf.Code, § 11500). Probation was denied and defendant was sentenced to prison. He appeals, contending the evidence is insufficient to support the judgment.

These facts were adduced: Working in an undercover capacity, Deputy Sheriff Rodriguez made the acquaintance of one Carlos Armijo and arranged to any heroin from him. At about 11:30 a.m. on February 26, 1965, Rodriguez and another individual were picked up by Armijo and driven to the intersection of 102nd Street and Doty Avenue. Armijo parked the car and Rodriguez passed him $50 of county- advanced funds. He took the money and walked west on 102nd Street. Rodriguez and the individual with him remained in the car. Deputy Scriven, who had been following Armijo's car, kept Armijo under observation until he reached the 3800 block. Sergeant Elliott was staked-out on 102nd Street in the 3800 block. He saw Armijo cross the street and proceed up a flight of stairs in an apartment building at 3821 West 102nd Street. Elliott changed his vantage point, moving closer to the apartment building. He then observed defendant come out of apartment six at the top of the same stairs he had seen Armijo climbing about three minutes before. Defendant walked across the street and entered another apartment building, at 3818 West 102nd Street. A few minutes later defendant walked back across to apartment six. Almost immediately after defendant entered, the officer saw Armijo come out of apartment six. Armijo proceeded back to the car in which Rodriguez was waiting. He handed Rodriguez a paper bindle which contained heroin.

On the evening of March 5, 1965, Deputy Sheriffs Morales and Berman went with several other officers to the apartment building at 3818 West 102nd Street. They had a warrant to search apartment seven at that location. The door of the apartment was opened to the officers by a Miss Essary. Inside defendant was observed seated in the dining area. Besides defendant and Miss Essary, three other individuals were in the apartment. The search undertaken by the officers turned up ten bindles of heroin in the bedroom dresser. Defendant was living with Miss Essary in the apartment. He was living there under the name Billy Essary. He did not appear to be a narcotics user.

Defendant offered no defense.

The judgment must be affirmed if the record presents substantial evidence that defendant was in possession of heroin on each of the two occasions described by the officers. The question whether the original verdicts finding defendant guilty of the two greater offenses of sale and possession for sale were proven, was rendered moot when the court reduced both offenses to simple possession.

The crime of possession of narcotics requires a physical or constructive possession of the narcotic substance plus an awareness of its presence and nature. (People v. Hokuf, 245 Cal.App.2d 394, 397, 53 Cal.Rptr. 828.) These essential elements may be established by circumstantial evidence and reasonable...