People v. Camp, Cr. 37132

• Decision Date: 04 April 1980
• Docket Number: Cr. 37132
• Citation: 104 Cal.App.3d 244,163 Cal.Rptr. 510
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Norma CAMP, Defendant and Appellant.

Page 510

163 Cal.Rptr. 510

104 Cal.App.3d 244

The PEOPLE of the State of California, Plaintiff and Respondent, v. Norma CAMP, Defendant and Appellant.

Cr. 37132.

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

April 4, 1980.

As Modified April 14, 1980.

Hearing Denied May 28, 1980.

[104 Cal.App.3d 245] David E. Frank, Los Angeles, for defendant and appellant.

Burt Pines, City Attorney, Rand Schrader, Supervisor Appellate Section, by Ray L. Hart, Deputy City Attorney, for plaintiff and respondent.

EPSTEIN, ^* Associate Justice.

This court is asked to consider whether a person may be validly convicted of a violation of section 11377 of the Health and Safety Code, ¹ possession of a controlled substance, in this case phencycledine (PCP) ² without proof of the quantity possessed. We conclude that such a conviction is proper and affirm the judgment of conviction in this case.

PROCEDURAL HISTORY

Defendant was charged with violation of section 11377. She pleaded not guilty. Her Penal Code section 1538.5 suppression motion was denied and the case proceeded to a trial by jury. At the conclusion of the People's case, defendant moved for a judgment of acquittal pursuant to Penal Code section 1118.1. The motion was denied and

she presented her defense. A guilty verdict was returned and following appropriate procedure defendant was sentenced. She appealed to the Appellate Department of the Superior Court (Los Angeles) which affirmed her conviction. A motion for rehearing was denied, but the Appellate Department certified the case to this court on the issue stated at the beginning of this opinion. (Cal. Rules of Court, Rules 63(a), (b), (c).) We accepted the certification and ordered the case transferred to this court. We now affirm.

FACTUAL SUMMARY ³

During the course of a traffic accident investigation conducted in the early morning hours of December 10, 1978, a police officer observed defendant walking across the street, outside a marked crosswalk. As a result of her actions, a vehicle was forced to come to a complete stop.

The officer approached defendant to issue a citation for failure to yield to on-coming traffic. In speaking with defendant, the officer noticed she was unresponsive and had a blank stare. Suddenly, her mood completely changed and she became combative and hysterical. Based on his training and experience, the officer suspected that defendant was under the influence of PCP. He detained her and conducted a warrant check, through which he learned that there was an outstanding bench warrant for her arrest.

The officer arrested defendant. As she entered the police vehicle, defendant dropped a handrolled cigarette, which the officer retrieved. On the way to the police station, defendant twice escaped from the police vehicle, and was recaptured.

The handrolled cigarette was examined by a police criminalist. It weighed .4 gram, and "contained mint leaves laced with phencycledine." No quantitative test was made to determine the amount of PCP by weight or volume.

A police sergeant, trained in the use and packaging of narcotics, testified that one of the most common ways to use PCP is to place it on mint leaves. The PCP-laced leaves are then handrolled into cigarettes. The sergeant testified that such a cigarette, weighing .4 gram, "would absolutely create a narcotic effect in any person who smoked it." A .4 gram cigarette of that kind is very large, and is commonly referred to as a "two-hit" cigarette, meaning that a narcotic effect would be produced by only two puffs.

After defendant's motion for acquittal was denied, she presented evidence in defense: a witness who said that he was at the scene of the accident and did not observe defendant to be acting strangely or to drop a cigarette; and her own testimony that she was not under the influence of alcohol or a drug, did not drop the cigarette, and became hysterical only when she was arrested.

DISCUSSION

Defendant argues that the foregoing is not sufficient to sustain the conviction for possession of PCP.

The standard is clear: "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 444, 606 P.2d 738, 751; Jackson v. Virginia (1979) --- U.S. ----, 99 S.Ct. 2781, 61 L.Ed.2d 560.) And since defendant presented the issue at the close of the People's case-in-chief, by a Penal Code section 1118.1 motion for acquittal, we test the sufficiency by the evidence as it stood at that point. (People v. Belton (1979) 23 Cal.3d 516, 519-523, 153 Cal.Rptr. 195, 591 P.2d 485.)

The elements of the crime of unlawful possession of a controlled substance, such as PCP, are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially. (Russell v. Superior Court (1970) 12 Cal.App.3d 1114, 1117, 91 Cal.Rptr. 255.)

Defendant's challenge is limited to the sufficiency of evidence that she possessed a usable amount of PCP.

The leading case on usable quantity is People v. Leal (1966) 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665.) Prior to Leal, a number of cases had held that possession of even a useless trace or a burned residue of a contraband drug was a crime. The Leal court pointed out that the Legislature intended to prohibit possession of such drugs in a quantity sufficient to be used, not amounts so minute as to have no use at all. The Legislature "proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces of residue of such substance." (People v. Leal, supra, 64 Cal.2d at p. 512, 50 Cal.Rptr. at p. 782, 413 P.2d at p. 670; emphasis in opinion.) Leal was a heroin case, but the principle it announced is applicable to other controlled substances. (See People v. Johnson (1970) 5 Cal.App.3d 844, 848, 85 Cal.Rptr. 238.)

The evidence in this case is that the cigarette defendant apparently tried to abandon weighed .4 gram, was handrolled, made up of mint leaves "laced ⁴ with PCP" and that such a cigarette was sufficient to produce a narcotic effect on a person who takes as little as two puffs.

This is certainly enough for a trier of fact to conclude that the Leal standard was satisfied. That standard is reflected in CALJIC 12.00 which was given to the jury in this case.

Defendant argues that it is not enough. She contends that a PCP possession conviction requires a chemical analysis of the substance sufficient to determine the weight or volume of the PCP in her cigarette. No case has been cited that so holds, and we know of none.

In People v. Karmelich (1979) 92 Cal.App.3d 452, 455-56, 154 Cal.Rptr. 842, defendant was found to be in possession of nine balloons containing "a substance resembling heroin." A chemical analysis confirmed that there was heroin in the substance, but not how much (except that it was at least one part per thousand). The argument presented was the same as in this...