People v. Carmical

• Decision Date: 22 January 1968
• Docket Number: Cr. 6219
• Citation: 65 Cal.Rptr. 504,258 Cal.App.2d 103
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Lee CARMICAL, Defendant and Appellant.

Page 504

65 Cal.Rptr. 504

258 Cal.App.2d 103

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Lee CARMICAL, Defendant and Appellant.

Cr. 6219.

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

Jan. 22, 1968.

Rehearing Denied Feb. 21, 1968.

Hearing Denied March 20, 1968.

Judith A. Ciraolo, Oakland, for appellant (Under appointment of Court of Appeal, First Appellate District).

Thomas C. Lynch, Atty. Gen., of State of California, Robert R. Granucci, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

After a trial by jury, defendant appeals from a judgment of conviction of two counts of felony: possession of heroin (Health & Saf. Code, § 11500) and possession of a concealable weapon by a felon (Pen.Code, § 12021). It is contended on appeal that the conviction rests upon illegally obtained evidence, that the evidence was insufficient as to the narcotic count, and that the judge erred in responding to the jurors' requests for further instructions and for the rereading of certain testimony. We have concluded that the only error made by the trial judge was not prejudicial.

On the afternoon of January 7, 1966, narcotic enforcement officers received information, through an anonymous telephone call, that appellant was in possession of 'more heroin than he could swallow' at a certain address in Oakland. Going there to investigate, the officers at first lurked in places of concealment. After a time they saw appellant come outside and enter a vehicle parked in front. A few minutes later, while the officers were approaching appellant with the intention of questioning him, appellant took a pistol and holster from under his sweater and placed it on the seat of the car. The officers knew that appellant had suffered a prior conviction of felony; they therefore instantly arrested him for violation of Penal Code section 12021. An immediate search of appellant's pockets produced a balloon containing a quantity of heroin. Other balloons, and milk sugar such as might be used in preparing heroin for sale, were found on appellant's person and in the trunk of his car.

Appellant testified that the pistol was not his, that he did not have it concealed on his person, and that he was only putting it in his car for a woman friend who wanted him to transport it to another place. He denied having any heroin in his pocket and accused one of the arresting officers of attempting to 'plant' the contraband on him. He attempted to explain the presence of milk sugar (commonly used in diluting heroin) by explaining that he used it in preparing a non-narcotic dangerous drug for his own consumption. The jury found appellant not guilty of possessing heroin for sale but guilty of the included offense of possessing the drug. Appellant was also found guilty of being a felon in possession of a concealable weapon.

On appeal it is contended that appellant's arrest, the seizure of the pistol, the ensuing search, and the seizure of the narcotic contraband were unlawful. But this is not a case comparable to Badillo v. Superior Court (1956) 46 Cal.2d 269, 294 P.2d 23, or Gascon v. Superior Court (1959) 169 Cal.App.2d 356, 337 P.2d 201, where the presence of contraband was disclosed when the suspect attempted to rid himself of it under threat of an immediate unlawful search. Here appellant himself testified that he was not aware of the officers' approach until after the gun had been placed in the car. Moreover, there was no evidence contradicting the testimony of the officers that they approached appellant without any intention of arresting or searching him unless probable cause fortuitously emerged. The officers were entitled to question appellant in the course of their investigation of the information they had received from the informant. (People v. Stout (1967) 66 A.C. 178, 185 (modified (1967) 66 A.C. 626, 57 Cal.Rptr. 152, 424 P.2d 704); see also People v. Jolke (1966) 242 Cal.App.2d 132, 147, 51 Cal.Rptr. 171.) It is elementary that evidence produced in a search incidental to a lawful arrest is admissible. (People v. Harris (1965) 62 Cal.2d 681, 683, 43 Cal.Rptr. 833, 401 P.2d 225.)

The further contention that the evidence should have been suppressed because of physical brutality practiced by one of the officers (citing Rochin v. People of California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183) is not supported by the evidence. The officer who actually made the arrest was not armed; he therefore moved very quickly when he saw that appellant had a pistol. The officer did collide with appellant, but there is no evidence of brutality constituting a violation of due process.

A forensic chemist testified that the balloon found in appellant's pocket contained 15.17 grams of an adulterated mixture containing heroin, milk sugar, and some other unidentified substances. The chemist did not make a quantitative analysis and hence was unable to state the amount of pure heroin present in the powder. Citing People v. Leal (1966) 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, and People v. McCarthy (1966) 64 Cal.2d 513, 50 Cal.Rptr. 783, 413 P.2d 671, appellant argues that the evidence did not establish that he was in possession of an amount of narcotics 'usable for sale or consumption.' It is true that according to the chemist's testimony ¹ the possibility exists that only traces of heroin were present in the mixture. However, Health and Safety Code section 11500, under which appellant was convicted, does not specify any net amount of heroin which an accused person must be proved to have possessed in order to establish guilt. The Supreme Court emphasized in People v. Leal, supra, 64 Cal.2d 504, 506, 50 Cal.Rptr. 777, 778, 413 P.2d 665, 666, that '(the statute) proscribes only the Knowing possession of narcotics.' The numerous cases reviewed in the Leal opinion in which convictions have been reversed where only traces of narcotic substances were proved to be in possession, all present circumstances where the accused might well have been unaware of the presence of any contraband. For example, in People v. Cole (1952)...