California Landmark Cases on Legal Possession

Penal Code Section 475, subdivision (b) provides: "Every person who possesses any blank or unfinished check, note, bank bill, money order, or traveler's check, whether real or fictitious, with the intention of completing the same or the intention of facilitating the completion of the same, in order to defraud any person, is guilty of forgery." According to the instruction given in this case, the prosecution was required to prove defendant (1) possessed a blank or unfinished check, (2) had the specific intent to complete or facilitate the completion of the check and (3) had the specific intent to defraud another person. (See CALJIC No. 15.07.) Possession of an item may be either actual or constructive. (People v. Cordova (1979) 97 Cal.App.3d 665, 670; People v. Austin (1994) 23 Cal.App.4th 1596, 1608, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861.) "Actual or constructive possession is the right to exercise dominion and control over the item or the right to exercise dominion and control over the place where it is found. . Exclusive possession is not necessary. A defendant does not avoid conviction if her right to exercise dominion and control over the place where the item was located is shared with others. " (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Actual possession occurs when the defendant exercises direct physical dominion and control over the item. (People v. Austin, supra, 23 Cal.App.4th at pp. 1608-1609.) "Constructive possession exists where a defendant maintains some control or right to control the item that is in the actual possession of another." (People v. Morante (1999) 20 Cal.4th 403, 417.) "Possession may be imputed when the item is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Francis (1969) 71 Cal.2d 66, 71; People v. Williams (1971) 5 Cal.3d 211, 215.) Joint constructive possession may be inferred from joint control and accessibility. (People v. Newman, supra, at p. 53.) "The inference of dominion and control is easily made when the item is discovered in a place over which the defendant has general dominion and control," such as her residence, automobile, or personal effects. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584; People v. Johnson (1984) 158 Cal.App.3d 850, 854.) But "proof of opportunity of access to a place where the item is found, without more, will not support a finding of unlawful possession." (People v. Redrick (1961) 55 Cal.2d 282, 285.) "More than mere presence must be shown in order to prove constructive possession." (People v. Jenkins, supra, at p. 584; People v. Johnson, supra, at p. 854.) The "'intent to defraud is a question of fact to be determined from all the facts and circumstances of the case. '" (Perry v. Superior Court (1962) 57 Cal.2d 276, 285.) Mere possession of unaltered blank checks, without more, is insufficient to establish the intent to complete the checks to defraud as required by the statute. ( 475, subd. (b); People v. Norwood (1972) 26 Cal.App.3d 148, 159.) But "'the intent to defraud may be, and usually must be, inferred circumstantially.'" (Perry v. Superior Court, supra, at p. 285.) The circumstances surrounding the possession of the blank checks can support an inference of the intent to complete the checks to defraud. (See, e.g., People v. Ah Sam (1871) 41 Cal. 645, 655-656 blank checks were immediately seized upon defendant's receipt of them; intent to complete checks to defraud sufficiently manifested by circumstances of possession alone; People v. Castellanos (2003) 110 Cal.App.4th 1489, 1493-1494 "defendant's possession of blank sheets of Selective Service cards and instructions on making California driver's licenses could lead a reasonable trier of fact to infer that he possessed the requisite intent to defraud".) In addition, the intent to defraud can be inferred from the commission of other similar offenses, as we will discuss later. (See People v. Smith (1984) 155 Cal.App.3d 1103, 1148, disapproved on other grounds in Baluyut v. Superior Court (1996) 12 Cal.4th 826; People v. Norwood, supra, 26 Cal.App.3d at p. 159 unauthorized possession of more than one forged document for the payment of money and a driver's license made out in another's name is evidence of fraudulent intent.)