People v. Lotrean

DRAPEAU, J. Defendant was convicted by a jury of eight counts of possession of narcotics, in violation of section 11500 of the Health and Safety Code. The jury also found that defendant had suffered imprisonment for conviction of two prior felonies.

Two grounds of appeal are urged: (1) That it was error for the trial court to refuse an instruction offered by defendant; and (2) that it was error to admit testimony as to the value of the narcotics found in defendant’s motel room. These will be discussed in order.

The instruction offered and refused reads as follows:

“In order for defendant to have in his possession the objects charged in the information, you must be convinced by the evidence and beyond a reasonable doubt that he knowingly had such objects in his possession. The meaning of the word ‘possession’ includes the exercise of dominion and control over the thing possessed.”

The court gave the following instruction:

“Within the meaning of the law, a person is in possession of a narcotic when it is under his dominion and control, and, to his knowledge, either is carried on his person or is in his presence and custody, or, if not on his person or in his presence, the possession thereof is immediate, accessible, and exclusive to him. To constitute possession it is not necessary that the person be the owner of the narcotic in question.”

Defendant relies upon People v. Gory, 28 Cal.2d 450 [170 P.2d 433], In that ease our Supreme Court states the rule that knowledge in relation to a defendant’s awareness of the presence of narcotics is a basic element of the offense of possession. And in that ease a conviction for possession of marijuana was reversed because the trial court withdrew from the jury an instruction that to sustain a conviction the accused should have been aware of his possession of the proscribed narcotic. The instruction withdrawn in that case was the same as the instruction offered and refused in this case.

But in this case the instruction which was given, as quoted above, contains the necessary element of knowledge required by the Gory case.

We turn now to defendant’s assertion of error as to [585]the admission of evidence. This requires a brief statement of the facts.