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

PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny T. REDRICK, Defendant and Appellant.*

Cr. 7099.

Decided: July 19, 1960

Ellery E. Cuff, Public Defender, John M. Moore, Richard W. Erskine, Deputy Public Defenders, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

Defendant was convicted of the possession of heroin (Health and Safety Code, section 11500). He has appealed from the judgment and the order denying a new trial.

Defendant's sole contention is that the evidence is insufficient to sustain the judgment because it does not show that defendant possessed the narcotic.

Redrick lived in and managed a rooming house owned by Henry C. Smith. On September 28, 1959, Police Officer Hanks went to Redrick's room and told him that he understood that he was selling narcotics. Redrick denied this and Officer Hanks asked him whether he had any narcotics in his room. Redrick stated that he did not and, in response to Officer Hanks' request gave him permission to search the room. Officer Hanks searched but found nothing. Looking further around the rooming house, Hanks noticed a storeroom which was locked with a padlock. He asked defendant whether he had a key to the storeroom. Defendant stated that he did not. Officer Hanks then called on Smith, the owner of the building; he told Smith that he was a police officer and that he was conducting a narcotics investigation of the defendant. Hanks requested permission to enter the storeroom in the rooming house and asked for a key. Smith stated that defendant had the key. The storeroom was used only by Smith and the defendant, and there was only one key to it. Smith kept the key in his shop and gave it to defendant from time to time. He had noticed that the key was gone ‘three or four days' before September 28, and he had asked Redrick whether he had the key and Redrick told him that he did have it.

Smith gave Officer Hanks permission to enter the storeroom. Inside the room the officer found a small brown cloth coin purse inside a folding bed. The purse contained ten white paper-wrapped bindles. Each of them contained heroin. Redrick was arrested. He denied any knowledge of the heroin, and denied having a key to the storeroom. He stated that approximately three weeks previously he had had possession of the key but that he no longer had it.

Redrick was asked by the police, ‘How come you started fooling with narcotics again, Johnny?’ He replied, ‘Well, when I got out of the joint, there wasn't any work to be had, and what could I do? I didn't want to starve; so I went back to fooling with narcotics again.’ He told the police that he had been purchasing the contraband from a person named Blackburn in ounce and half ounce quantities.

Defendant did not testify in his own behalf or present any witnesses or offer any evidence in his own defense.

The law is clear that in order to convict a person of the possession of narcotics it must be established that the accused exercised dominion and control over the narcotic substance with knowledge of its presence and character. Furthermore, mere opportunity of access to a place where narcotics are concealed will not sustain a conviction. People v. Winston, 46 Cal.2d 151, 158–161, 293 P.2d 40; People v. Gory, 28 Cal.2d 450, 456, 170 P.2d 433; People v. Barnett, 118 Cal.App.2d 336, 340, 257 P.2d 1041. However, possession and knowledge may be established by circumstantial evidence. People v. Magdaleno, 158 Cal.App.2d 48, 51, 322 P.2d 89; People v. Stanford, 176 Cal.App.2d 388, 1 Cal.Rptr. 425.

Analysis of the evidence, together with the inferences reasonably to be drawn therefrom (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778), provide adequate support for the conclusion that defendant was guilty of the crime charged. He not only had access to the storeroom where the heroin was found but had removed the key from its usual place in the owner's shop without the latter's knowledge and had kept possession of the key for some time before the owner discovered its absence. Defendant claimed he no longer had the key but failed to explain its whereabouts. He had been purchasing this identical type of contraband and obviously needed a safe place to secrete it. A locked storeroom to which he had access and into which he could go virtually at will without suspicion would be a natural and safe place to hide it.

In this connection, defendant's failure to testify is not without significance. The rule in this respect is stated in People v. Ashley, 42 Cal.2d 246, at page 268, 267 P.2d 271, at page 285: ‘A defendant's failure to take the stand ‘to deny or explain evidence presented against him, when it is in his power to do so, may be considered by the jury as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.’ People v. Adamson, 27 Cal.2d 478, 489, 165 P.2d 3, 9. But the failure to testify will not supply a lacuna in the prosecution's proof.'

The physical facts, defendant's conduct, his admission to the police that he was ‘fooling with narcotics again’ and had been purchasing heroin, and the testimony of Smith, amply support the inference of defendant's guilt.

The fact that the owner had access to the storeroom was for the consideration of the trier of fact. People v. Dosier, 180 Cal.App.2d 436, 4 Cal.Rptr. 309. It does not, as a matter of law, destroy the inference of defendant's guilt. People v. Magdaleno, supra, 158 Cal.App.2d at pages 51–53, 322 P.2d at page 92, and cases there cited.

The judgment and the order denying a new trial are affirmed.

FOX, Presiding Justice.

ASHBURN, J., and RICHARDS, Justice pro tem., concur.

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