People v. Roberts

• Decision Date: 28 July 1964
• Docket Number: Cr. 4515
• Citation: 39 Cal.Rptr. 843,228 Cal.App.2d 722
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Howard ROBERTS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 843

39 Cal.Rptr. 843

228 Cal.App.2d 722

The PEOPLE of the State of California, Plaintiff and Respondent, v. Howard ROBERTS, Defendant and Appellant.

Cr. 4515.

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

July 28, 1964.

Benjamin M. Davis, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Robert R. Granucci, Henry B. Lasky, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Presiding Justice.

Defendant appeals from judgment of conviction, after jury trial, of violation of section 11500, Health and Safety Code (possession of heroin). ¹

The sole question presented is the sufficiency of the evidence.

RECORD.

On March 29, 1963, at approximately 8:30 p. m. a narcotics agent was situated at California and Bancroft Streets in Berkeley, California. He had the house at 2249 Spaulding Street under surveillance. He and other officers were waiting for one Harrington who lived there, to appear. They were going to serve a search warrant 'on his person.' An automobile arrived and parked on California Street south of Bancroft about a block from the house, although there were empty parking spaces in front of the house. It appeared to the agent that it was occupied by two men. The driver of the car, one Perry, emerged and entered the rear of 2249 Spaulding Street. A few minutes later, he emerged from the house, returned to the vehicle and drove off followed by the agent. The driver of the car, when walking to and from the house, kept looking over his shoulder and around the area.

The narcotics agent continued following the car intending to talk to the occupants at the first opportunity as to the reason for the visit of one of them to the house the officer had under surveillance. He noticed a third man, subsequently shown to be defendant, sit up in the back seat. Sergeant Plummer of the Berkeley Police Department, who was in a separate car, noticed the agent's car and joined in the pursuit.

When Sergeant Plummer was discovered following the suspect car occupied by the three defendants Roberts moved around in the rear seat looking at Plummer, then Mobley in the front seat turned around and looked at Plummer and talked to the driver. Then there was a great deal of commotion inside the suspect vehicle. Their car then pulled into a service station and the narcotics agent followed, pulling his car in front of the suspect car at right angles. While the three men were looking behind them at Sergeant Plummer's car, and after the narcotics agent had gotten out of his car, the suspect car moved slowly forward, colliding with the car of the agent. All three men were fidgeting noticeably as the agent approached their car on the driver's side. Sergeant Plummer approached from the other side and observed that the three men were jumping back and forth inside their car, '* * * they were like jumping beans, back and forth,' and the man on the passenger side, ultimately shown to be defendant Mobley, locked the car door.

Looking in from outside the narcotics agent observed a small white paper package on the front seat of the vehicle. The shape of the package indicated it to be a 'bindle' of the type used to carry narcotics. The three men emerged from the car, but defendant needed assistance. He moved slowly and deliverately, had a bandage around his head, and his eyes were bloodshot. He stated he had been in an accident about a week before. The three men were arrested. Later at the police station defendant stated that he had been in a hospital and had examinations, a blood test and some injections. An examination of defendant showed him to have numerous scabs on both arms from the inner elbow area to the wrists, both fresh and old. Defendant admitted the marks on his arms were needle marks. Defendant's right eye was examined and found to be pin-pointed and fixed (did not react to light), but the narcotics agent admitted that the examination consisted of shining a light into the eye quickly and that the examination was not really a good determination. The bindle which the narcotics agent had recovered contained .05 grams of heroin, about a '$10.00 paper.'

A San Francisco police officer testified that defendant in December 1961 had admitted to him that he previously used narcotics and heroin. There is no record of any prior conviction on any charge. No evidence was offered against defendant of any past association or knowledge of Harrington, a known user, whose house had been under surveillance. There were no needle marks on defendant Perry's arms, but his eyes appeared pin-pointed and fixed. He denied knowledge of the presence of the bindle. He was later tested and no evidence of narcotics was found. Mobley's arms indicated scabs less than a week old. Defendant did not testify, nor did Mobley.

Perry, who apprently owned the automobile in which defendant was later riding, testified that he was shooting pool in the Market Street Sport Center. There he met defendant Mobley, who asked him if he knew where Harrington (who was a known narcotic user and who later that evening was found to have fresh needle marks on his arms) lived. On Perry stating that he did, Mobley asked Perry to drive him there. Perry agreed to do so after he finished the game he was playing. Mobley left the Center but returned later with defendant. They then entered Perry's car and proceeded to the place where Harrington lived. Perry there said, 'Come on, let's go.' Mobley suggested that Perry go and tell Harrington that Mobley was in the car. This Perry did and Harrington said, 'I see you guys down the pool hall.' Mobley returned and started the car towards the pool hall. It was then that the officers started to follow the car.

WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION FOR UNLAWFUL POSSESSION OF HEROIN? YES.

It is a well settled proposition of law 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 both of its presence and of its narcotic character. (People v. Groom (1964) 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Villanueva (1963) 220 A.C.A. 450, 456, 33 Cal.Rptr. 811; People v. Redrick (1961) 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255.) These elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Groom, supra, 60 Cal.2d p. 696, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Villanueva, supra, 220 A.C.A. p. 456, 33 Cal.Rptr. 811; People v. Valenzuela (1959) 174 Cal.App.2d 759, 762, 345 P.2d 270; People v. Fernandez (1959) 172 Cal.App.2d 747, 754, 342 P.2d 309.) Though proof of opporunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession, the fact that other persons had access to the premises in which the narcotic was found does not negative a finding of joint possession and control. (People v. Redrick, supra, 55 Cal.2d p. 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Valenzuela, supra, 174 Cal.App.2d p. 762, 345 P.2d 309; 2 Witkin, California Crimes, § 690, p. 633.) Exclusive possession of the premises is not required, nor is physical possession of the drug. (People v. Villanueva, supra, 174 Cal.App.2d p. 456, 345 P.2d 309.) Constructive possession is sufficient and possession by any person when the defendant has an immediate right to exercise dominion and control over the narcotic will support a conviction. (People v. Toms (1958) 163 Cal.App.2d 123, 128, 329 P.2d 90; People v. White (1958) 50 Cal.2d 428, 325 P.2d 985.) However, 'Mere presence at the scene of the crime standing alone is not sufficient to justify a finding of guilt.' (People v. Foster (1953) 115 Cal.App.2d 866, 868, 253 P.2d 50, 51.)

Taking the evidence most strongly in favor of the prosecution, it shows that defendant, a narcotics user still under its influence from a recent use, was in the back seat of an automobile in which one of the occupants of the front seat was also an addict. The car stopped about a block away from the home of a person whom the police suspected to be a narcotics peddler. The driver of the car went into the rear entrance of this house, and shortly returned to the car. As the car proceeded down the street it was followed by a car in which there were police officers not in uniform. The car had no indication that it was a police car. When this car was discovered by the occupants of the car in which defendant was riding, defendant sat up, there was some 'commotion' and the occupants turned and watched the police car. Defendant's car turned into a service station. Its driver and the others were so occupied in observing the police car that they did not see another police car which had entered the station, and defendant's car ran into it. The three men were 'fidgeting' and 'jumping back and forth' in their car before the impact. There was a bindle of heroin on the front seat between Mobley and Perry. Defendant's head was bandaged and he apparently needed assistance in getting out of the car. Defendant did not testify to explain his actions.

There are numerous cases involving possession of narcotics. The determination of each depends upon the peculiar circumstances of the particular case. As said in People v. Montero (1962) 200 Cal.App.2d 295, 299, 19 Cal.Rptr. 274, 276. 'As might be expected, no sharp line can be drawn to distinguish the congeries of fact which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of a narcotics in a place to which he had access but not exclusive access and of which he had some control, but not exclusive control.'

There is no case in which the circumstances were exactly similar to those in our case. In most of the cases in which a conviction for possession of narcotics has been upheld where more than one person is present where the narcotic is found, the particular defendant has...