People v. Haynes (253 Cal. App. 2d 1060, 1967)

COUGHLIN, J.

Defendant and a codefendant Marguerite Anderson were charged with possession of marijuana for sale, viz., a violation of Health and Safety Code section 11530.5; were convicted by verdict of a jury; moved for a new trial, which was denied; and defendant alone appeals, contending the judgment should be reversed because (1) the evidence is insufficient to sustain the verdict; (2) statements by the district attorney constituted prejudicial misconduct; and (3) the court erred in refusing an instruction requested by him.

The sufficiency of the evidence to sustain a verdict is determinable on appeal under the well-settled rule stated in People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778], as follows: “The court on appeal ‘will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury which has been approved by the trial court, can be set aside on appeal upon the ground’ of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. . . .’If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” In this regard the court said in People v. Redrick, 55 Cal.2d 282, 290 [10 Cal.Rptr. 823, 359 P.2d 255], a narcotics possession case: “The existence of possible exculpatory explanations, whether they are simply suggestions not excluded by the evidence or even where they could be reasonably deduced from the evidence, could not justify this court’s rejecting the determination of the trier of fact that defendant is guilty unless on appeal it ‘be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. ’ ’ ’

On May 22, 1966, at 8 p.m., narcotics agents and police officers, with a warrant authorizing the search of a residence identified as 4364 “G” Street., in San Diego, and of the person of defendant, took a reconnaissance position near the residence; remained there for approximately two and one-half hours; shortly after 10 p.m. saw Marguerite Anderson leave the residence and walk in a westerly direction toward Market Street; within 5 or 10 minutes saw an automobile come west on “G” Street and park in front of the residence; saw a male and a female person get out of the automobile, the female appearing to be the same person who previously had left the residence and the male being a person of the same general description as the defendant; saw both of them enter the residence from which, shortly thereafter, the male person left, went to the car in which a third person was acting as driver, leaned inside, turned and walked back to the residence, opened the door and hollered “Lock the door,” then returned to the car and left. At about 10 :30 p.m. the officers left the area; returned at 1:15 a.m. on the following morning, i.e., May 23d; and proceeded to execute the search warrant. One of the officers knocked on the door of the residence and “hollered very loudly, ‘Police Officers. Open up. We have a search warrant. ’ ”; received no response; about 30 seconds later again “beat rather heavily on the side of the door,” announced the presence of the officers and their possession of a search warrant; then heard sounds inside of “rapid movement”; and thereupon, together with the other officers, forced his way into the house. Defendant and Marguerite Anderson were in a “TV room.” The former, standing by a chair, was clothed but did not have on shoes. The latter was lying on a couch, awake, and was wearing a robe and covered by a blanket. Also in the house were her five children.

Upon searching the house, the officers found in the ‘ ‘ TV room” a single marijuana seed on the floor near the place where defendant had been standing; a waxed sandwich bag containing marijuana, in the pocket of a woman’s sweater in a closet adjoining the bedroom; a purse containing 'marijuana debris; a pair of man’s shoes, and a man’s suit with a cleaning tag attached bearing the notation: “J. Haynes, 5/16/66, 4364 ‘G’ Street,” in the same closet; on top of a dresser in the bedroom an empty package of Zig-Zag papers; and in the kitchen, unused waxed sandwich bags similar to the one found in the woman’s sweater.

In searching under the house the officers found 37 waxed paper bags containing marijuana; two kilo bricks of marijuana worth approximately $1,100; brown paper bags, one of which contained a Safeway shopping receipt dated May 19, 1966; blue cellophane paper; and green wrapping paper upon which was a sticky substance. The waxed paper bags of marijuana were found near the crawl hole used as an entryway under the house. The bags were similar to the waxed sandwich bags found in the kitchen. Marijuana is packaged in this manner for sale. The kilo bricks were found at a place more distant from the entryway. Near them was the green wrapping paper containing a sticky substance. When marijuana is wrapped for sale, a substance, ordinarily of a sticky nature, is rubbed on the paper to “kill” the marijuana odor.

Defendant had $109 in his possession; was wearing a new pair of pants, which he had purchased about a week before for $19; and said he was unemployed. Traces of marijuana were found in the two pockets of his shirt; in the two front pockets of his pants; and also in the two rear pockets of his pants. A package of Zig-Zag papers was found in the left rear pocket of his pants.

To establish possession of narcotics it must be shown the defendant exercised dominion and control over the drug with knowledge of its presence and narcotic character. (People v. Redrick, supra, 55 Cal.2d 282, 285.) Substantial proof of these elements may be supplied by circumstantial evidence alone; does not require a showing of exclusive or physical possession; and may be established by an inferential showing of joint and constructive possession. (People v. White, 50 Cal. 2d 428, 431 [325 P.2d 985]; People v. Roberts, 228 Cal.App.2d 722, 726-727 [39 Cal.Rptr. 843].) Factors supporting an inference of joint and constructive possession are joint occupancy of premises where the narcotic is located (People v. Poe, 164 Cal.App.2d 514, 516 [330 P.2d 681]; People v. MacArthur, 126 Cal.App.2d 232, 236 [271 P.2d 914]; People v. Williams, 121 Cal.App.2d 679, 681 [263 P.2d 853]); recent association with the narcotic by use or otherwise, which may be inferred from the presence of narcotic debris in the clothing of the accused (People v. Redrick, supra, 55 Cal.2d 282, 287; People v. Rogers, 207 Cal.App.2d 261, 268 [24 Cal.Rptr. 341]; People v. Allen, 196 Cal.App.2d. 655, 660 [16 Cal.Rptr. 869]; People v. Anders, 167 Cal.App.2d 65. 67. 68 [333 P.2d 854]; People v. Robarge, 151 Cal.App.2d 660, 668 [312 P.2d 70]); knowledge of the presence of the narcotic on the premises, which likewise may be inferred from the presence of narcotic debris in the clothing of an accused who jointly occupied the premises where the narcotic was located (People v. Anders, supra, 167 Cal.App.2d 65. 67. 68; gen. see People v. Cahill, 163 Cal.App.2d 15, 18. 20-21 [328 P.2d 995]); circumstances indicating the accused may have been engaged in the sale of narcotics, such as the unexplained possession of a substantial amount of money by an unemployed person (People v. Magdaleno, 158 Cal.App.2d 48, 52 [322 P.2d 89]); and conduct evidencing a guilty conscience. (People v. Redrick, supra, 55 Cal.2d 282, 287, 288; People v. Roberts, supra, 228 Cal.App.2d 722, 729; People v. Magdaleno, supra, 158 Cal. App.2d 48, 52; see also People v. Ortiz, 185 Cal.App.2d 622, 624 [8 Cal.Rptr. 494].)

The evidence in the case at bench supports reasonably dedueible inferences that the defendant, with his codefendant Marguerite Anderson, jointly occupied the premises where the marijuana was found; had knowledge of the presence of that marijuana and its narcotic character; had access thereto; and had joint control thereof.

It may be inferred the name and address appearing on the cleaning slip attached to the suit in the closet was given the cleaning establishment by defendant; that this address identified the place where he resided; that he was present on the night in question as a joint occupant of the premises with his codefendant; and that he was not a mere visitor. Corroborating this conclusion is the fact, inferentially supported by the evidence that he had removed his shoes and placed them in the closet. Although the defense successfully blocked the introduction in evidence of statements made by the defendant t