People v. Aguilar

• Decision Date: 06 December 1963
• Docket Number: Cr. 8593
• Citation: 35 Cal.Rptr. 516,223 Cal.App.2d 119
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Oscar Casio AGUILAR, Defendant and Appellant.

Page 516

35 Cal.Rptr. 516

223 Cal.App.2d 119

The PEOPLE, Plaintiff and Respondent, v. Oscar Casio AGUILAR, Defendant and Appellant.

Cr. 8593.

District Court of Appeal, Second District, Division 4, California.

Dec. 6, 1963.

Hearing Denied Jan. 29, 1964.

Geo. V. Denny, III, Beverly Hills, under appointment by the District Court of Appeal, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and C. A. Collins, Deputy Atty. Gen., for plaintiff and respondent.

On Rehearing.

BURKE, Presiding Justice.

Does the possession of two spoons, which are parts of narcotic injection kits, from the scrapings of which a forensic chemist was able to detect a minuscule amount of heroin, constitute the known possession of the narcotic itself? This is the principal question in this appeal.

Defendant appellant Oscar Aguilar and codefendant James Aguilar were charged with the possession of heroin in violation of section 11500 of the Health and Safety Code. They were also charged with three prior felony convictions. Each entered a plea of not guilty and denied the prior convictions. Trial was by the court, each defendant and all counsel having waived trial by jury. Defendant Oscar Aguilar was found guilty and two of the prior felonies alleged were found to be true. Codefendant James C. Aguilar was found not guilty. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law, which sentence was ordered 'to run concurrently with any time owing on parole.'

Immediately following the arrest of appellant in the driveway of a motel the officers conducted a search of the motel room occupied by him and his brother. Two brown paper-wrapped packages were found underneath a bed. Upon the officers' discovery of these packages, appellant stated, 'There is nothing in there but an outfit.' The packages contained hypodermic needles, spoons and eye droppers. In a conversation with Sergeant Virgin, appellant stated that he was 'hot' (meaning addicted to narcotics); that he had done well for a year on the Naline program, but that he had met a fellow who 'turned him on again.' He had been using narcotics for more than one month 'real heavy.' He related that he was 'running' from his parole officer, and that he and codefendant had moved into the motel that day.

William King, a forensic chemist, testified that he examined 'debris' (scrapings), found on each of the two spoons discovered in appellant's motel room, and in his opinion the debris contained heroin.

On petition for rehearing, court-appointed counsel urges that the Legislature intended to separate the crime of possession of narcotic paraphernalia used for unlawfully injecting a narcotic (Health & Saf.Code, § 11555), a misdemeanor, from the more serious offense of possessing the narcotic itself (Health & Saf.Code, § 11500), which it classified as a felony; that the evidence in this case showed appellant and his brother, codefendant, had possession of two used narcotic kits, which they freely admitted; that this is the only offense they are shown to have committed and that to permit evidence of minuscule, unrecognizable scrapings from parts of the kits to be used as evidence of possession of narcotics thwarts the purpose of the Legislature in establishing the two classes of offenses. Undoubtedly, under the evidence presented in this case appellant could have been prosecuted for the lesser offense, but with the presence of a detectable trace of the narcotic on the spoons he was prosecuted for possession of heroin.

Appellant maintains the People's evidence was insufficient as a matter of law to convict him of possession, because the amount of heroin found was infinitesimal. 'The cases hold that the statute [Health & Saf.Code, § 11500] does not require the possession of any specific quantity of narcotics. [Citations.]' (People v. Anderson, 199 Cal.App.2d 510, 520, 521, 18 Cal.Rptr. 793, 799.) In the latter case the prosecution's forensic chemist testified that the capsule which was in defendant's possession contained a few milligrams of white powder found to be heroin: (199 Cal.App.2d page 520, 18 Cal.Rptr. page 799) "possibly about five milligrams, maybe a little less' (which he said would be about 5/1000ths of a gram--and that it takes about 28.4 grams to make one ounce); that the capsule was 'substantially empty."

In People v. Marich, 201 Cal.App.2d 462, 19 Cal.Rptr. 909, a conviction for unlawful possession was based on expert testimony that the residue found on a piece of cotton, and in the folds of a piece of paper (folded in a manner indicating it was used as a bindle), was heroin. The amount found in the bindle consisted of 'several powdery fragments.' This residue was utilized in the course of the chemical analysis. None of the residue in the cotton, a piece of which was cut off for the chemical test, was visible to the naked eye. The forensic chemist testified, however, that the residue in the bindle and cotton, as found, could be used by a person wishing to inject the remains found to be present.

In People v. Salas, 17 Cal.App.2d 75, 61 P.2d 771, an expert testified that the deposits found on a spoon contained morphine. In addition, a box containing tablets of morphine was found near the point of arrest...