PETERS, J. I dissent.
The writ of prohibition should issue if at the preliminary no evidence is introduced sufficient to establish probable cause that the accused committed the charged crime. That means that there must be some evidence upon which men of ordinary caution and prudence might believe the accused to be guilty. There must be a rational and reasonable basis for that belief. (Lorenson v. Superior Court, 35 Cal.2d 49, 56 [216 P.2d 859] ; People v. Ketchel, 59 Cal.2d 503, 532 [30 Cal.Rptr. 538, 381 P.2d 394] ; Robison v. Superior Court, 49 Cal.2d 186, 188 [316 P.2d 1].) Prohibition should be denied only when the evidence offers some rational theory to support the inference of guilt. (Jackson v. Superior Court, 62 Cal.2d 521, 525 [42 Cal.Rptr. 838, 399 P.2d 374].) In essence, the test is was there “ ‘some evidence’ . . . which, if unexplained . . . would . . . warrant a conviction by a trial jury.” (Dong Haw v. Superior Court, 81 Cal.App.2d 153, 158, 159 [183 P.2d 724].) This means that there must be some evidence in regard to each element of the crime, and in narcotic cases this refers primarily to the element of scienter. (Garabedian v. Superior Court, 59 Cal.2d 124,127 [28 Cal.Rptr. 318, 378 P.2d 590].)
The crime charged in the instant case, violation of section 11531 of the Health and Safety Code (transportation, possession, sale, or administration of marijuana) has two scienter elements: the accused must know he possessed the drug and know it was narcotic in nature. There is no evidence of either element in this case.
The applicable law is summarized in People v. Jackson, 198 Cal.App.2d 698, 704, 705 [18 Cal.Rptr. 214] : “It is well settled that ‘to establish unlawful possession of narcotics [marijuana] it must be shown that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. ’ (People v. Redriek, 55 Cal. 2d 282, 285 [10 Cal.Rptr. 823, 359 P.2d 255].) ‘These elements may be established by circumstantial evidence and reasonable inferences drawn therefrom. [ Citation. ] The narcotics need not be found on the person of the defendant; it is sufficient if they are deposited in a place under the possession and control of the accused. Exclusive possession of the premises is not necessary nor is physical possession of the drug of the essence. [Citation.] ’ (People v. Hurst, 183 Cal.App.2d 379, 387 [6 Cal.Rptr. 483].) However, ‘proof of opportunity [477]of access to a place where narcotics are found, without more, will not support a finding of unlawful possession. ’ ’'
It has been held that knowledge of possession may be inferred when the narcotic is found in the accused’s shirt pocket or hidden in the mattress of his bed. (People v. Prieto, 191 Cal.App.2d 62, 71 [12 Cal.Rptr. 577].) Knowledge of the narcotic nature of a substance possessed can, of course, also be implied, as where police observe a suspect suspiciously throwing away a cigarette and the man denies he had a “joint” (a term only one experienced with marijuana would be expected to use). (People v. Groom, 60 Cal.2d 694 [36 Cal.Rptr. 327, 388 P.2d 359].) The owner of a car or a tenant of a room may be reasonably supposed to know what is in his car, or room, or on his person. Thus, it may be implied that such a person had control or possession of substances found in his car, room or on his person. Thus, in the instant ease, there may be enough evidence to hold the driver of the ear, Oliver, for trial, since he had dominion and control of the car where the marijuana was found. (See e.g., People v. Watkins, 96 Cal.App.2d 74 [214 P.2d 414].) But Oliver is not before us. Only the two passengers sitting in the back seat of the car are involved. As to them there is a complete lack of evidence from which knowledge that there was marijuana in the car could be implied. The majority seek to imply such knowledge from the fact that had they looked at the floorboard near their feet they would have seen a rolled up matchbook of a type sometimes used, according to the evidence, as a marijuana “crutch.” This “crutch” was not burned nor did it contain any marijuana. Nor was there any smell of marijuana in the ear. Nor was there any evidence petitioners knew it was there. It is doubtful if an average man would recognize such a matchbook as a marijuana “crutch,” and there is no reason offered why petitioners should be charged with such knowledge. But even if they recognized the matchbook as a marijuana “crutch” it does not follow that they knew marijuana was in the car. We are told by the majority that petitioners were in close proximity to the marijuana. But of what significance is proximity if there is no evidence of knowledge ? Moreover, if petitioners had turned around on the back seat of the ear and looked into the “well” into which the convertible top folded, there in plain sight they would have been what appeared to be an ordinary package of Tareyton cigarettes. There was absolutely nothing to indicate that the package contained marijuana, and there were no suspicious circumstances.
[478]Mere proximity to the marijuana cannot create a reasonable or rational suspicion. The Attorney General argues that mere association with Oliver was enough to create a reasonable suspicion. Normally, of course, association alone does not create a criminal—accomplice liability requires some aiding and abetting. (People v. Ah Ping, 27 Cal. 489.) No reason why this normal rule should not apply has been suggested.
The majority, in refusing prohibition, rely upon mere surmise and conjecture. There is no rational or reasonable basis for any such suspicion. This is one of those extreme eases in which prohibition should issue. As we were told by the now Chief Justice in Greenberg v. Superior Court, 19 Cal.2d 319, 322 [121 P.2d 713], we are obliged to uphold “the right of a person to be free from prosecution for crime unless there is some rational ground for assuming the possibility that he is guilty.” Otherwise, as the same case points out (p. 323), an unjustly accused defendant suffers unreasonable expense, delay, inconvenience, and the shame of a trial. Unless prohibition issues in the instant ease the important rights recognized in Greenberg will have been nullified.
I would issue the writ of prohibition.
Tobriner, J., and Sullivan, J., concurred.