PEOPLE v. SHOWERS (1967)

Appellant James Hugh Showers and codefendant Donald Showers were jointly charged with possession of narcotics (violation of Health and Safety Code, § 11500.) Defendants pleaded not guilty, waived a jury trial and were jointly tried. Appellant was found guilty. His motion for new trial was denied and he was sentenced to the state prison. Donald, his co-defendant, was acquitted. Appellant filed notice of appeal on April 15, 1966 from the judgment.

After the appeal had been filed, it appeared that the notes of the court reporter had been inadvertently removed by custodians and lost. The reporter testified to that fact at a hearing called for that purpose in the superior court on October 21, 1966. Respondent thereupon moved in this court to remand the case to the superior court for the preparation of a settled statement in lieu of a reporter's transcript. The motion was granted by this court and pursuant to our order, a settled statement was prepared and filed on May 9, 1967.

Mary C. Brown testified for the prosecution that on January 3, 1966, she observed appellant, co-defendant Donald and a third person, Larry Oliver, in an automobile parked in front of her residence at 11540 Balboa Street in Granada Hills. The car had been stopped by the police and, as the three men left the vehicle, she noticed Oliver shake his clothes as if he were dropping something. Mrs. Brown was unable to ascertain whether the men dropped or threw anything during this period of time. All persons then left.

Appellant and an unidentified female returned that same evening and searched through an ivy patch in front of Mrs. Brown's residence. The next day, on January 4, at about 11:00 a. m., Mrs. Brown again saw appellant searching for approximately 15 minutes through the same ivy patch. Two hours later, she saw appellant, co-defendant Donald, and a third male again searching through the ivy for an approximately 15 minute period. At this time the police were called.

On January 4, at about 1:15 p. m., Officer Gaida received a call to proceed to Mrs. Brown's residence. He saw the three persons mentioned searching through the ivy. Gaida, together with Officer Prieto, searched through the area, and, within a minute or two, found a blue balloon containing a powdery substance resembling heroin. The balloon was found approximately two feet from the location where appellant had been searching. Appellant and co-defendant Donald were placed under immediate arrest and taken to the police station.

It was stipulated at trial that the balloon contained heroin.

Gaida stated that appellant, his code-fendant, and Oliver were stopped on January 3, because the area was one in which many daytime burglaries had occurred and the automobile in which the three rode, was observed cruising back and forth through an alley in a suspicious manner.

Appellant testified that when he was stopped by the police on January 3, they searched the vehicle and the individuals, but could find no contraband. As they were leaving, Oliver told appellant that he, Oliver, had lost $50 near the ivy patch. Appellant went back to the location to search for the money. He stated that Oliver had refused to return because of the fact the police had stopped him at that location. Appellant stated that he conducted his search at a distance from the place where the heroin was found.

Mrs. Brown was called as a defense witness. She testified she saw Officer Prieto bend down in the ivy at a spot approximately 14 feet from the location where appellant had been searching.

Appellant contends the evidence does not Justify a finding that he knowingly possessed narcotics.

‘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; see also People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255.) Exclusive or physical possession of the contraband is not required. Constructive possession will constitute a violation, and evidence of physical possession by any person ‘when the defendant has an immediate right to exercise dominion and control over the narcotic, has been held sufficient to sustain a conviction * * *.’ (People v. White, 50 Cal.2d 428, 431, 325 P.2d 985, 987; see also People v. Roberts, 228 Cal.App.2d 722, 727, 39 Cal.Rptr. 843; People v. Blunt, 241 Cal.App.2d 200, 204, 50 Cal.Rptr. 440.)

The three necessary elements to establish unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Groom, supra, 60 Cal.2d at pp. 696–697, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Redrick, supra, 55 Cal.2d at page 289, 10 Cal.Rptr. 823, 359 P.2d 255.)

The evidence before the trial court relating to appellant's dominion and control over the heroin disclosed that appellant's companion dropped an object into the ivy patch, and that appellant returned on three occasions to search for it, and that heroin was found a few feet from where he was searching. This fact is subject to the inference that appellant exercised constructive possession over the heroin and indicates his knowledge of what it was.

The weight to be given to circumstantial evidence is solely a matter for the trial judge. We cannot reject his determination of guilt unless 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.’ (People v. Tom Woo, 181 Cal. 315, 326, 184 P. 389, 393.) The testimony presented at trial coupled with the trial judge's apparent disbelief of appellant's explanation supplied the court with sufficient evidence of guilt.

Appellant contends that the settle statement prepared pursuant to Rule 36(b) of the California Rules of Court¹ is prejudicial to his prosecution of this appeal.

The general rule is that ‘[i]f a record can be ‘prepared in such a manner as to enable the court to pall upon the questions sought to be raised’ [citation], then there is no rational likelihood or legally cognizable possibility of injustice to the appealing defendant even though a verbatim record certified by the official court reporter cannot be supplied.' (People v. Chessman, 35 Cal.2d 455, 460, 218 P. 2d 769, 772, 19 A.L.R.2d 1084; see also People v. Fuentes, 132 Cal.App.2d 484, 488, 282 P.2d 524.) The burden is on the defendant to show either prejudicial error in the record or that the record is so inadequate that he is unable to show such error. (People v. Chessman, supra, 35 Cal. 2d at page 462, 218 P.2d 769.) Appellant has not shown how he was prejudiced by any alleged inadequacy in the record. We must therefore presume that the settled statement is a fair record of the proceedings in the trial court.

Appellant's argument that this court exceeded its jurisdiction by remanding the case to the superior court for the preparation of a settled statement is devoid of merit. The following language in Rule 12(a) of California Rules of Court specifically allows this procedure: ‘On suggestion of any party * * * the reviewing court, on such terms as it deems proper, may order * * * that an agreed or settled statement of portions of the oral proceedings be prepared and transmitted to it; and when so transmitted they they shall be deemed a part of the record on appeal.’

The judgment is affirmed.

FOOTNOTES

1.  ‘If a transcription of any part of the oral proceedings cannot be obtained for any reason, the appellant, as soon as the impossibility of obtaining a transcript is discovered, may serve and file an application for permission to prepare a settled statement in place thereof. The application shall be verified and shall contain a statement of the facts or a certificate of the clerk showing that a reporter's transcript cannot be obtained. The judge shall decide the application within five days, and, if the showing is sufficient, shall make an order permitting the preparation of a settled statement. Thereafter the parties shall conform, as far as practicable, to the provisions of rule 7; provided, however, that the statement shall be delivered to the judge for settlement within 30 days after the making of the order, unless the time is extended by the reviewing court, and an original and three copies of the statement as settled shall be engrossed and filed with the clerk.’

ROTH, Presiding Justice.

HERNDON and FLEMING, JJ., concur.