People v. Rogers

• Decision Date: 22 June 1971
• Docket Number: Cr. 14756
• Citation: 95 Cal.Rptr. 601,5 Cal.3d 129,486 P.2d 129
• Court: California Supreme Court
• Parties: , 486 P.2d 129 The PEOPLE, Plaintiff and Respondent, v. Dave Oliver ROGERS, Defendant and Appellant.

Page 601

95 Cal.Rptr. 601

5 Cal.3d 129, 486 P.2d 129

The PEOPLE, Plaintiff and Respondent, v. Dave Oliver ROGERS, Defendant and Appellant.

Cr. 14756.

Supreme Court of California In Bank.

June 22, 1971.

R. Eugene Vernon, Oakland, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci and Alfred Dovbish, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

A jury found Dave Oliver Rogers guilty of transportation of marijuana (Health & Saf.Code, § 11531) but acquitted him on a charge of possession of marijuana (Health & Saf.Code, § 11530). He admitted a prior burglary conviction. The court suspended imposition of sentence and placed him on probation. He appeals from the judgment of conviction.

Defendant's principal contentions are (1) that since he was acquitted of the possession charge, he could not be convicted for illegal transportation; (2) that the court erred in failing to instruct the jury regarding the elements of the offense of transportation; and (3) that one who transports marijuana for his own personal use rather than for sale or distribution is not guilty of illegal transportation. We have concluded that possession of marijuana is not a necessary element of the offense of transportation of marijuana, but that the trial court committed reversible error in failing to instruct the jury on its own motion regarding the elements requisite to a conviction for that offense. We have further concluded that the word 'transports' under Health and Safety Code section 11531 may not be construed as referring only to transportation of marijuana for the purpose of selling or distributing the drug to others.

About 2 a.m. on February 8, 1968, police officers Olson and Hoffman stopped defendant's car, a two-door Ford, for a traffic violation and for investigation in connection with a robbery. Defendant, age 19, was driving the car; Charles B., age 16, was in the right front seat; and Larry J., age 16, and Eugene Earl, ¹ age 21, were on the left and right sides respectively of the rear seat.

At the officers' request defendant and Larry J. got out of the car, and produced identification. Before alighting, the latter made 'a furtive movement * * * down behind the seat.' Both boys subsequently got back into the car.

Charles B. also got out of the car at the officers' request and while Hoffman was talking to him Detective Sergeant Odiorne arrived. Upon ascertaining that a search for weapons had not been made, Odiorne asked the remaining three occupants in the car to get out. When Earl started to comply, Odiorne saw him kick a matchbox with his right foot. The matchbox fell from inside the car to the pavement, and Olson picked it up and upon examining its contents concluded that the substance was marijuana. An expert confirmed Olson's conclusion and stated that there was enough marijuana to make 8 to 15 cigarettes.

Odiorne and Olson also saw a red pill, which appeared to be a barbiturate known as 'red devil,' roll from beneath the car. They thereupon went to the left side of the car and saw defendant alighting. On the pavement beneath the left door they found forty red pills containing barbiturates, five plastic packages of methedrine, and four marijuana cigarettes. According to Olson, it would have been possible for anyone on the left side to throw the 'merchandise' out.

Defendant and his companions were arrested for possession of narcotics. A search of their persons revealed zig-zag papers on Charles B.

Larry J. and Charles B. were called to testify by the prosecution. Larry J. testified that he smoked a marijuana cigarette in the car on the night in question, that defendant, Earl, and Charles B. were then present, and that the car was moving at the time.

Charles B. first testified that no one had smoked marijuana in his presence but, after being confronted with a contrary statement he had made, he then admitted that he and Larry J. had smoked a marijuana cigarette in defendant's presence while they were 'riding around,' before Earl got into the car. However, he later testified that when he smoked marijuana defendant was not in the car.

Defendant took the stand in his own behalf and testified that he did not see anyone in his car with marijuana; that he did not know what marijuana looked like, or how it smelled; and that had anyone smoked it he would not have known it was marijuana. He admitted owning the Ford, having purchased it a few days before his arrest.

Earl denied possession of narcotics or having seen the matchbox before an officer showed it to him. He stated that he was picked up by defendant five minutes or less before the officers stopped the car and did not recall anyone smoking marijuana while he was in the car.

Section 11531 provides: 'Every person who transports, imports into this State, sells, furnishes, administers or gives away, or offers to transport, import into this State, sell, furnish, administer, or give away, or attempts to import into this State or transport any marijuana shall be punished by imprisonment in the state prison from five years to life. * * *' Similar provisions regarding narcotics other than marijuana and regarding restricted dangerous drugs are contained in sections 11501 and 11912 respectively. ² Section 11012 provides: "Transport,' as used in this division (which includes §§ 11531 and 11501), * * * includes 'conceal,' 'convey,' or 'carry."

An essential element of the offense of transportation is 'Knowledge by the defendant of both the presence of the drug and its narcotic character. * * *' (Rideout v. Superior Court, 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 583, 432 P.2d 197, 199.) The cases hold that one having the requisite knowledge may be found guilty of illegal transportation if he also has joint or exclusive possession of the drug in a moving vehicle. (Rideout v. Superior Court, Supra, at p. 474; People v. Burke, 208 Cal.App.2d 149, 162, 24 Cal.Rptr. 912; People v. Miller, 162 Cal.App.2d 96, 98, 328 P.2d 506; People v. Holliday, 120 Cal.App.2d 562, 564, 261 P.2d 301; People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837.) Possession may be either actual or constructive; the latter is established by showing that defendant maintained some control or right to control over contraband in the physical possession of another. (See People v. Francis, 71 Cal.2d 66, 71, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Showers, 68 Cal.2d 639, 642--644, 68 Cal.Rptr. 459, 440 P.2d 939.)

Although possession is commonly a circumstance tending to prove transportation, ³ it is not an essential element of that offense and one may 'transport' marijuana or other drugs even though they are in the exclusive possession of another. (People v. Valerio, 13 Cal.App.3d 912, 921, 92 Cal.Rptr. 82; People v. Vasquez, 135 Cal.App.2d 446, 448, 287 P.2d 385; People v. Watkins, 96 Cal.App.2d 74, 76, 214 P.2d 414; see 2 Witkin, Cal.Crimes (1963) p. 644; but see People v. Solo, Supra, 8 Cal.App.3d 201, 206, 86 Cal.Rptr. 829; People v. Sanders, 250 Cal.App.2d 123, 134, 58 Cal.Rptr. 259.) For example, were defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs in their possession, his conduct would have sustained a conviction of transportation. (Cf. People v. Francis, Supra, 71 Cal.2d 66, 72, 75 Cal.Rptr. 199, 450 P.2d 591.) Therefore, it is apparent that defendant's acquittal of the possession charge did not necessarily preclude conviction of transportation. ⁴

Nor can we agree with defendant's further contention that the offense of illegal transportation requires a specific intent to transport contraband for the purpose of sale or distribution, rather than personal use. Neither the word 'transport,' the defining terms 'carry,' 'convey,' or 'conceal,' nor section 11531 read in its entirety, suggests that the offense is limited to a particular purpose or purposes.

It should be noted that section 11531 not only prohibits transporting marijuana, but also importing, selling, furnishing, administering, or giving it away. The prohibitions are in the disjunctive--not the conjunctive--and nothing in that section exempts transportation (or importation) of marijuana for personal use. Had the Legislature sought to restrict the offense of transportation to situations involving sale or distribution, it could easily have so provided. For example, section 11530.5, enacted in 1961, provides that 'Every person who Possesses for sale any marijuana except as otherwise provided by law shall be punished' as specified. (Italics added; see also § 11500.5.)

Thus, the courts of this state have consistently applied section 11531 and similar sections to situations involving the knowing conveyance of narcotics or drugs in a moving vehicle, whether or not the evidence disclosed that the contraband was intended for sale or distribution. (See Rideout v. Superior Court, Supra, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197 (small quantity of marijuana found in car; no indication of intent to sell or distribute); People v. Johnson, Supra, 5 Cal.App.3d 844, 847, 85 Cal.Rptr. 238 (one amphetamine pill); People v. Miller, Supra, 162 Cal.App.2d 96, 328 P.2d 506 (one marijuana cigarette consumed in moving vehicle); People v. Coleman, Supra, 100 Cal.App.2d 797, 801, 224 P.2d 837 (31 grams of heroin); People v. Watkins, Supra, 96 Cal.App.2d 74, 214 P.2d 414 ($12.50 bag of marijuana); see also People v. Sanders, Supra, 250 Cal.App.2d 123, 134, 58 Cal.Rptr. 259 (possession of drugs transported need not be possession for purpose of sale); People v. One 1940 Buick 8 Sedan, 70 Cal.App.2d 542, 546--547, 161 P.2d 264, 'Traffic in drugs is not made an indispensible element * * * (of section 11610, regarding forfeiture of automobile used to 'transport' narcotics).') Moreover, in People v. Gurrola, 218 Cal.App.2d 349, 352, 32 Cal.Rptr. 368, the court specifically rejected the claim that it was improper to convict...