People v. Rogers

486 P.2d 129, 5 Cal. 3d 129, 95 Cal. Rptr. 601, 1971 Cal. LEXIS 242

• Court: California Supreme Court
• Decided: June 22, 1971
• Docket: Crim. 14756
• Status: Published

Opinions

Opinion

BURKE, J.

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 ziz-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, 432 P.2d 197].) 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; 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.) 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 [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 [one amphetamine pill]; People v. Miller, supra, 162 Cal.App.2d 96 [one marijuana cigarette consumed in moving vehicle]; People v. Coleman, supra, 100 Cal.App.2d 797, 801 [31 grams of heroin]; People v. Watkins, supra, 96 Cal.App.2d 74 [$12.50 bag of marijuana]; see also People v. Sanders, supra, 250 Cal.App.2d 123, 134 [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 for transporting heroin (§ 11501) unless it were shown that the act of transportation was linked to some other aspect of the crimes mentioned in that section (i.e., importing, selling, furnishing, etc.).

Recently, in an unanimous opinion in People v. Cressey, 2 Cal.3d 836, 848-849 [87 Cal.Rptr. 699, 471 P.2d 19], we established the principle to be applied in cases under Health and Safety Code section 11556 (presence in place where narcotics are used) that “in one’s own residence or automobile one may have the responsibility to prevent the use of the narcotic for illegal purposes in that one has some control over the premises or vehicle.” (Italics added.) An analogous principle should apply in cases under section 11531. Regardless of his purpose or intent, the driver or owner of an automobile has the responsibility to prevent the conveyance of contraband by himself or his passengers, at least while that vehicle is under his dominion or control. Proof of his knowledge of the character and presence of the drug, together with his control over the vehicle, is sufficient to establish his guilt without further proof of an actual purpose to transport the drug for sale or distribution. (See People v. Cressey, supra, 2 Cal.3d 836, 847-849; People v. McGrew, 1 Cal.3d 404, 414 [82 Cal.Rptr. 473, 462 P.2d 1], (dissenting opn. by Mosk, J.); Rideout v. Superior Court, supra, 67 Cal.2d 471, 474.)

In 1970 the Legislature amended the penalty provisions of sections 11501, 11531, and 11912 (Stats, 1970, ch. 1098, §§ 3, 9 & 16) but did not change the basic substantive provisions of those sections, thereby presumably acquiescing in the construction given to those sections by the decisions discussed above. (Stafford v. Realty Bond Service Corp., 39 Cal.2d 797, 805 [249 P.2d 241]; 45 Cal.Jur.2d, Statutes, § 101, and cases cited.)

Defendant asserts that “the most compelling explanation for the vast disparity between punishments of . . . section 11530 and 11531[⁵] is that section 11531 applies to those who by their transportation of marijuana have increased the risk of harm to others in the society,” suggesting that a person who transports marijuana or other drugs for his own use has not increased that risk. However, the Legislature was entitled to assume that the potential for harm to others is generally greater when narcotics are being transported from place to place, rather than merely held at one location. The Legislature may have concluded that the potential for increased traffic in narcotics justified more severe penalties for transportation than for mere possession or possession for sale,5 ⁶ without regard to the particular purpose for which the transportation was provided, a matter often difficult or impossible to prove.⁷ Moreover, a more severe penalty for those who transport drugs may have been deemed appropriate to inhibit the frequency of their own personal use and to restrict their access to sources of supply, or to deter the use of drugs in vehicles in order to reduce traffic hazards and accidents, as well as to deter occurrences of sales or distributions to others. The relative privacy and increased mobility afforded by the automobile offers expanded opportunities for the personal use and acquisition of drugs; greater penalties may legitimately be imposed to curtail those opportunities. In any event, in the absence of any legislative intent to the contrary, we conclude that section 11531 requires only a knowing transportation of marijuana, whether for personal use, sale, distribution or otherwise.

In the instant case, however, the trial court failed to give adequate instructions to the jury with respect to the element of knowledge, an essential element of the offense of transporting marijuana. Although the jury was instructed that knowledge by defendant of both the presence of the drug and its narcotic character is essential to a conviction of illegal possession of marijuana, the instructions did not state that such knowledge is also a prerequisite to a conviction for illegal transportation.⁸ (Rideout v. Superior Court, supra, 67 Cal.2d 471, 474.)

The record does not show that defendant requested an instruction advising the jury that the foregoing element was essential to a conviction for illegal transportation. However, “The general rule is that the court must instruct the jury on the general principles of law relevant to the issues raised by the evidence, even though not requested to do so, but need not instruct on its own motion on specific points developed at the trial. [Citations.] In People v. Wade . . . [53 Cal.2d 322, 324 (1 Cal.Rptr. 683, 348 P.2d 116)], we pointed out that the ‘general principles of law governing the case’ are ‘those principles of law commonly or closely and openly connected with the facts of the case before the court.’ ” (People v. Hood, 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370].)

Here the principle of knowledge was “commonly or closely and openly connected with the facts of the case before the court,” and the court was therefore required to give an instruction regarding knowledge sua sponte. (Cf. People v. Ford, 60 Cal.2d 772, 792-793 [36 Cal.Rptr. 620, 388 P.2d 892] [court required to instruct sua sponte in a prosecution for robbery that an essential element is a specific intent to steal]; People v. Bowens, 229 Cal.App.2d 590, 595 [40 Cal.Rptr. 435] [court required to instruct sua sponte in prosecution for illegal possession of narcotics that an essential element is knowledge of the narcotic character of the substance possessed]; People v. Longino, 222 Cal.App.2d 734, 738 [35 Cal.Rptr. 367] [court required to instruct sua sponte in a prosecution for offering to sell marijuana that an essential element is a specific intent to sell marijuana].)

People v. Graham, 71 Cal.2d 303, 329 [78 Cal.Rptr. 217, 455 P.2d 153], which involved the question whether the court adequately instructed the jury on the elements of first degree robbery, stated, “The general rule which provides that in defining the elements of a crime it is enough for the court to instruct in the language of the statute when the defendant fails to request an amplification thereof [citation] will not prevail when the jury would have difficulty in understanding and applying the statute. Under such circumstances, a court must give additional guidance and clarification on its own motion. [Citations.]” In the instant case it seems clear that the jury would have difficulty in understanding and applying the illegal transportation statute without clarification by the court regarding the element of knowledge.

The People, in arguing that the court did not err in failing to give a clarifying instruction, cite People v. Burke, supra, 208 Cal.App.2d 149, 162, 164, which states, “Considered as a whole the instructions told the jury that the defendant was charged with transportation of narcotics and that such activity was unlawful. So far as the gravamen of the accusation was concerned, this was the general principle of law governing the case,” and “The court did not err in failing to instruct the jury what the word ‘transportation’ meant since it is ‘well understood by all persons of average intelligence.’ (People v. Bill . . . 140 Cal.App. 389, 397 [35 P.2d 645].)” The quoted language, however, must be read in the light of the contention there made, namely, that “No instruction was given . . . describing the offense of transporting either narcotic involved, thus removing a vital element of the offense from the jury’s consideration.” (Italics added.) Although not entirely clear, apparently the court was concerned solely with whether an instruction should have been given defining the word “transportation” and not with whether an instruction should have been given regarding knowledge.

Moreover, it seems quite doubtful that persons of average intelligence would realize that the term “transportation” includes an element of knowledge. Under the instructions given, the jurors could reasonably have assumed that one who drives a car containing marijuana is guilty of transporting it, whether or not he knew of its presence and character.

From our examination of the record, it is reasonably probable that a result more favorable to defendant would have been reached had proper instructions been given. (Cal. Const., art. VI, § 13; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243].) As we have seen, defendant denied knowing what marijuana looked like, or how it smelled, and testified that he did not see anyone in his car with marijuana and that had someone smoked it he would not have known it was marijuana, and there was not strong evidence to the contrary.

The judgment is reversed. '

Wright, C. J., McComb, J., and Sullivan, J., concurred.

1 Earl was jointly tried with Rogers solely on the charge of possession of marijuana and was acquitted on that charge. Defendant, as used herein, refers to Rogers.

2 Section 11501 provides: “Except as otherwise.provided in this division, 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 narcotics other than marijuana except upon the written prescription of a physician . . . shall be punished” in a specified manner.

Section 11912 provides: “Except as otherwise provided in Article 8 . . . , every person who transports, imports into this state, sells, manufactures, compounds, furnishes, administers, or gives away, or offers to transport, import into this state, sell, manufacture, compound, furnish, administer or give away, or attempts to import into this state or transport any restricted dangerous drug except upon the prescription of a physician . . . shall be punished” in a specified manner.

3 In cases where defendant’s possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges. (People v. Solo, 8 Cal.App.3d 201, 208 [86 Cal.Rptr. 829]; People v. Richardson, 6 Cal.App.3d 70, 78 [85 Cal.Rptr. 607]; People v. Johnson, 5 Cal.App.3d 844, 847 [85 Cal.Rptr. 238].)

4 To the extent that People v. Solo, supra, 8 Cal.App.3d 201, and People v. Sanders, supra, 250 Cal.App.2d 123, suggest that possession is a necessary element to the offense of transportation, those cases are disapproved.

We also point out that under Penal Code section 954, an accusatory pleading may charge two or more different offenses connected in their commission or different statements of the same offense and that “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” (See Witkin, Cal. Criminal Procedure (1963) pp. 558-560, and cases cited.)

5 Section 11530 provides for imprisonment in the county jail for not more than one year, or in the state prison from one to ten years. Section 11531 provides for imprisonment in the state prison for five years to life and further provides that a violator “shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than three years.” Both sections provide for increased penalties in the event of one or more specified prior convictions.

6 Section 11530.5 provides that illegal possession of marijuana for sale is punishable “by imprisonment in the state prison for not less than two years nor more than 10 years,” and that the violator “shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than two years in prison.” The section also provides for increased penalties in cases of certain prior convictions.

7 With_ respect to heroin it has been stated, “Because of the hazards of the business, a narcotics peddler will not usually carry a large amount of heroin on his person or in his car. When a customer is found, the peddler will go to the place where he has hidden his supply of narcotics and return with the amount of heroin requested.” (See Interim Reports of Special Study Commission on Narcotics (1961), Appendix to Journal of the Senate, vol. 2, p. 34.) If en route the police lawfully stop him in connection with a different offense and legally find the heroin, it could well be impossible to prove the peddler’s purpose in transporting the heroin.

8 The court read to the jury the count in the information charging that defendant “did wilfully and unlawfully and feloniously transport marijuana.” The court further instructed the jury that “every person who possesses or transports any narcotic such as marijuana in an amount sufficient to be used as a narcotic, is guilty of a crime.” Other instructions specified the essential elements of illegal possession but no further instructions were given defining the offense of illegal transportation. The word “wilfully” was insufficient to charge the jury to find that defendant acted with the requisite knowledge. (See People v. Gory, 28 Cal.2d 450, 458 [170 P.2d 433].)