People v. Dosier

• Decision Date: 28 April 1960
• Docket Number: Cr. 3741
• Citation: 180 Cal.App.2d 436,4 Cal.Rptr. 309
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Shirley Mae DOSIER, Defendant and Appellant.

Page 309

4 Cal.Rptr. 309

180 Cal.App.2d 436

PEOPLE of the State of California, Plaintiff and Respondent, v. Shirley Mae DOSIER, Defendant and Appellant.

Cr. 3741.

District Court of Appeal, First District, Division 1, California.

April 28, 1960.

As Modified on Denial of Rehearing May 16, 1960.

Carmen J. Dominguez, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

DUNIWAY, Jstice.

Appeal from conviction on two counts of an indictment charging unlawful possession of hereoin and of marijuana (Health & Saf.Code, § 11500).

Defendant claims, through court appointed counsel, that the evidence does not sustain the verdict, that the court erred in not permitting her to attack the accuracy of the affidavit on which a search warrant was based, and that the judgment should be reversed because she was not promptly taken before a magistrate. We find no error.

The Facts

We state the facts in the light most favorable to the verdict, as we are required to do.

At approximately 5:00 p. m. on May 22, 1959, Lieutenant MacKenzie and Officer Petitt of the San Jose Police Department, accompanied by Agent Ojeda of the State Bureau of Narcotic Enforcement, proceeded by automobile to defendant's apartment in San Jose. Their arrival coincided with that of defendant, whom they approached on the sidewalk. Officer Petitt identified himself and the other men as police officers and handed defendant a warrant authorizing the search of her apartment. Defendant then admitted them with her key.

In a dresser drawer the officers found a bottle containing marijuana seeds. Defendant admitted that the bottle was hers. In a jewelry box atop the dresser they found a small plastic bottle containing cotton, a hypodermic needle, and an empty bindle paper which contained traces of heroin. Defendant stated that the needle and paper were not hers, but that she had known of their presence and had used the needle. In another drawer of the dresser there was found a coin purse containing two packages of brown cigarette paper, and ownership of these items was also acknowledged by defendant. At the trial defendant testified that she smokes 'tailor mades,' that is, factory rolled cigarettes. Lieutenant MacKenzie testified that wheat straw paper, such as was found in the purse, is commonly used in the rolling of marijuana cigarettes, and that white paper to be preferred brown rather than white paper to be preferred predominantly for this purpose. The dresser which figured in the discovery of the above items was used by both defendant and her roommate. However, the drawers from which the marijuana and cigarette papers were taken were used only by defendant, and the jewelry box from which the other items were taken belonged to defendant.

Defendant and her roommate were then taken by the officers to police headquarters, where they arrived at around 7:00 p. m. At about 8:00 p. m., following questioning by Lieutenant MacKenzie, defendant signed a statement wherein she admitted ownership of the marijuana and use of the hypodermic needle, but added that the latter implement was not 'actually mine,' because 'I never bought it.' By means of a concealed microphone and recorder the entire interview of the girls was preserved on tape. This tape was played back for the jury, except for portions which defendant's counsel requested to be omitted on the ground of undue repetition, and was introduced into evidence. The reporter did not transcribe the conversations revealed by the tape, but there are frequent references to these matters in later questions and answers which are reproduced in the record. From these references to the tape and other testimony it appears that while Lieutenant MacKenzie was absent from the room, defendant revealed to her roommate the length of time during which defendant had been using narcotics, and described to her the effects of 'taking a needle.' The needle, she said 'just belonged to everybody.'

1. The evidence was sufficient.

Defendant's counsel does not question that the narcotics were 'legally' in defendant's possession when they were discovered. However, counsel urges, more than possession must be proved if a conviction for possession of narcotics is to stand; it must also be shown that the possessor was cognizant of the narcotic properties of the substance. People v. Gorg, 1955, 45 Cal.2d 776, 780, 291 P.2d 469; People v. Winston, 1956, 46 Cal.2d 151, 158-161, 293 P.2d 40. Defendant testified that she had no knowledge of the existence of the marijuana and heroin discovered by the officers. Pointing to this testimony and ignoring defendant's signed statement and the other admissions which defendant concededly made, counsel argues that if defendant did not know of the existence of these articles, she could not have been aware of their narcotic nature. It is probable, we are told, that one Swanson who was proved to have been in possession of heroin and who was in the apartment on the night previous to defendant's arrest, left the narcotics in question, and plausible that defendant did not know what he had done.

Counsel's arguments as to probability and plausibility would of course be more properly directed to the jury. Defendant's version of the matter, hardly credible even when one has not heard the tape recording introduced below, presented no more than a conflict in the evidence, the resolution of which does not lie within the province of this court. People v. Newland, 15 Cal.2d 678, 104 P.2d 778. It need scarcely be said that there is adequate evidence that defendant was consciously in possession of substances known by her to be narcotics. People v. McDaniel, 154 Cal.App.2d 475, 481, 316 P.2d 660. People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177, is not in point. Here there was ample evidence, aside from the mere presence of the narcotics, to show that defendant knew their narcotic character.

2. The court was correct in not permitting counsel to attack the accuracy of the affidavit supporting the search warrant.

The affidavit stated sufficient facts to justify issuance of the warrant, and counsel does not now seriously contend otherwise. People v. Acosta, 142 Cal.App.2d 59, 62-64, 298 P.2d 29; Arata v. Superior Court, 153 Cal.App.2d 767, 772-776, 315 P.2d 473.

Defendant did not attack the search warrant before the issuing magistrate. At the trial her counsel sought to resist the introduction into evidence of the articles found in her apartment, on the grounds that the affidavit upon which the warrant was based contained statements which were untrue, and that the facts asserted in the affidavit were insufficient...