People v. Spelio

• Decision Date: 17 April 1970
• Docket Number: Cr. 16888
• Citation: 86 Cal.Rptr. 113,6 Cal.App.3d 685
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher AI SPELIO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 113

86 Cal.Rptr. 113

6 Cal.App.3d 685

The PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher AI SPELIO, Defendant and Appellant.

Cr. 16888.

Court of Appeal, Second District, Division 2, California.

April 17, 1970.

Carl Yanow ^*, Sherman Oaks, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Michael R. Botwin, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Christopher Spelio appeals from a judgment of conviction (order granting probation) of a violation of Health and Safety Code, section 11530, possession of marijuana. A jury found appellant guilty and his co-defendant not guilty. Motions made under Penal Code, sections 995 and 1538.5, prior to trial, were denied.

On January 7, 1969, at about 12:30 a.m. Officer Clements stopped the automobile appellant was driving. One of the headlights was out. Appellant and Stanley Lauritsen, a passenger, got out of the car and met the officer half way between the vehicles.

Officer Clements asked appellant for his driver's license and vehicle registration. He showed the officer his driver's license and the registration. The latter was for 1967. When asked for the 1968 registration, 'He stated he didn't think he had it.' After additional officers arrived, Officer Clements went to the driver's side of the car to check the identification tag located on the door panel. As he knelt to check the numbers, he saw what he believed to be marijuana seeds along the door runner. He then found additional seeds, a handrolled marijuana cigarette and several remnants of marijuana cigarettes.

Appellant testified on his own behalf. He stated that he first produced a 1967 registration and then produced the 1968 registration from the glove compartment and that Officer Clements got into the back seat of his car and found a beer can and marijuana seeds followed by the marijuana cigarette and cigarette remnants.

Appellant further testified that he had never seen marijuana seeds, that he had never smoked marijuana, and that he might have seen 'a few hippies' smoking marijuana. He also testified that about a week before the morning of January 7, he saw four strange people sitting in his car when it was parked at a friend's house. Two additional witnesses testified that they had seen the four strangers in appellant's car on that occasion.

Appellant first contends that the search made of his automobile was unlawful. 'The mere observation of that which is in plain and open view does not constitute a search.' (People v. Walters, 264 Cal.App.2d 834, 841, 70 Cal.Rptr. 766, 771.) Having seen the marijuana seeds, Officer Clements certainly had probable cause to believe the car contained further contraband. An officer may search a vehicle if he has probable cause to believe it contains contraband. (People v. Terry, 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 454 P.2d 36; People v. Gale, 46 Cal.2d 253, 255, 294 P.2d 13.) The evidence was therefore properly admissible.

Appellant next contends that there was insufficient evidence to prove that he had dominion and control over any of the so-called marijuana. 'Unlawful possession of narcotics is established by proof (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic.' (People v. Groom, 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 329, 388 P.2d 359, 361; People v. White, 71 A.C. 83, 85--86, 75 Cal.Rptr. 208, 450 P.2d 600; People v. Showers, 68 Cal.2d 639, 642, 643, 68 Cal.Rptr. 459, 440 P.2d 939; Rideout v. Superior Court, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197.) Each element 'may be established by circumstantial evidence and any reasonable inferences drawn from such evidence.' (People v. White, Supra, 71 A.C. at 86, 75 Cal.Rptr. at 210, 450 P.2d at 602; People v. Groom, Supra, 60 Cal.2d at 697, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Vasquez, 1 Cal.App.3d 769, 777, 82 Cal.Rptr. 131.) The evidence, including the fact that the contraband was found in appellant's car and that no one other than he ever drove the car, was sufficient for the trier of fact to find that appellant exercised dominion and control over the marijuana.

Appellant finally contends that it was error for the trial court to deny his motion for a new trial which was based on alleged jury misconduct. In support of the motion, four affidavits were filed (by appellant's attorney, appellant, appellant's stepmother and the codefendant). Each alleged, in substance, that one of the jurors, Mrs. Tate, stated to them following the trial, that she had discussed appellant's testimony with her child and that at least one other member of the jury had discussed the case with her children. The children, Mrs. Tate said,...