People v. Johnson, Cr. 3788

CourtCalifornia Court of Appeals
Writing for the CourtAULT; GERALD BROWN, P.J., and COUGHLIN
Citation85 Cal.Rptr. 238,5 Cal.App.3d 844
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. K. Hiram JOHNSON, Defendant and Appellant.
Docket NumberCr. 3788
Decision Date24 March 1970

Page 238

85 Cal.Rptr. 238
5 Cal.App.3d 844
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
K. Hiram JOHNSON, Defendant and Appellant.
Cr. 3788.
Court of Appeal, Fourth District, Division 1, California.
March 24, 1970.

Page 239

[5 Cal.App.3d 846] Peter Clarke, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kallay, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

At about noon, on February 11, 1969, appellant, K. Hiram Johnson, and his friend, Susan Ackerman, entered the United States from Mexico at the San Yaidro border crossing station. After a preliminary examination, they were taken to the customs baggage room for a more complete inspection. Johnson was asked by United States Customs Inspector Reay to empty his pockets. He removed a number of items, including one dirty, scored pill, which later proved to contain amphetamine. Reay called the San Diego City police and asked if they wanted to talk to a person who had one pill in his pocket.

As a result of the foregoing, Johnson was arrested and eventually the District Attorney of San Diego County filed an information in superior court charging him with two felonies. In Count I of the information, he was charged with possessing restricted dangerous drugs (Health & Saf.Code, sec. 11910), and in Count II with transporting restricted dangerous drugs (Health & Saf.Code, sec. 11912). A jury convicted Johnson of both possessing and transporting the single pill. The trial judge sentenced him to state prison for each violation. He ordered the two prison sentences to run concurrently. Johnson appeals from the judgment of conviction.

[5 Cal.App.3d 847] While appellant has not raised the issue of multiple conviction and multiple punishment on appeal, it is our duty to point out both have improperly occurred. (People v. Toliver, 270 A.C.A. 532, 537, 70 Cal.Rptr. 819.) Under the facts proved, appellant can neither be legally convicted of, nor lawfully punished for, both possessing and transporting the pill. The double punishment which has been imposed is clearly prohibited by Penal Code, section 654 and the cases which have interpreted it. (See in re Hayes, 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430; In re Johnson, 65 Cal.2d 393, 394--395, 54 Cal.Rptr. 873, 420 P.2d 393; Neal v. State of California, 55 Cal.2d 11, 18--21, 9 Cal.Rptr. 607, 357 P.2d 839.) The error in assessing the double punishment is not cured by the fact the trial court permitted the two sentences to run concurrently. (People v.

Page 240

Tenney, 162 Cal.App.2d 458, 462--463, 328 P.2d 254.) Moreover, the possession proved in the instant case was incidental to, and a necessary part of, the transportation charged. No prior, different or subsequent possession of the pill was shown. Under that circumstance the offense of possession was necessarily included in the offense of transporting the pill and appellant may not be convicted of both charges. (People v. Krupa, 64 Cal.App.2d 592, 596--597, 149 P.2d 416; People v. Mandell, 90 Cal.App.2d 93, 98--99, 202 P.2d 348; People v. Cole, 113 Cal.App.2d 253, 257, 248 P.2d 141; People v. Roberts, 40 Cal.2d 483, 491, 254 P.2d 501.) We indicate the foregoing briefly because it is only of importance in the event appellant is retried. We have concluded the entire judgment must be reversed for other reasons.

To prove their case, the People called a police chemist who testified he had analyzed the pill and found it to contain amphetamine. He further stated, '* * * the form of the tablet would indicate to me that it would be a useful amount.' An opinion is no better than the reason given to support it. On cross-examination he testified he performed a qualitative and not a quantitative analysis, did not know how much amphetamine was in the tablet, did not know if there was enough amphetamine in the pill to have a 'narcotic effect,' 1 and admitted he had no way of knowing if the pill would produce an effect. He again stated:

'* * * I state it is a useful amount because of the form it has, in a recognized manufactured form, which to me indicates it is in a condition that can be used.'

He did not identify the pill as the product of any particular commercial drug manufacturer or as being of a kind commercially known to contain any particular quantity of amphetamine.

[5 Cal.App.3d 848] In...

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31 practice notes
  • People v. Mardian, Cr. 7123
    • United States
    • California Court of Appeals
    • April 9, 1975
    ...are not sufficient evidence to justify conviction) (People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665; People v. Johnson, 5 Cal.App.3d 844, 85 Cal.Rptr. 238), the prosecution need not show that the quantity possessed is capable of producing a narcotic effect on the user. (People......
  • People v. Vargas, Cr. 13535
    • United States
    • California Court of Appeals
    • December 9, 1975
    ...[53 Cal.App.3d 532] prosecution must establish that the ingestion of the pill will produce a drug effect. (See People v. Johnson (1970) 5 Cal.App.3d 844, 849, 85 Cal.Rptr. 238.) Other cases indicate that it is not the effect of the amount discovered which is material, but whether or not the......
  • People v. Reed, No. S136345.
    • United States
    • United States State Supreme Court (California)
    • July 3, 2006
    ...and dissenting opinion claims that People v. Richardson (1970) 6 Cal. App.3d 70, 85 Cal.Rptr. 607 and People v. Johnson (1970) 5 Cal.App.3d 844, 85 Cal. Rptr. 238, and perhaps even People v. Rogers (1971) 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129, somehow support its position. (Conc. & d......
  • State v. Vance, Nos. 6078
    • United States
    • Supreme Court of Hawai'i
    • November 13, 1979
    ...the possession of "a" or "any" narcotic drug. People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665 (1966); People v. Johnson, 5 Cal.App.3d 844, 85 Cal.Rptr. 238 (1970); Beutler v. State, 88 Nev. 707, 504 P.2d 699 (1972); See also State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962); ......
  • Request a trial to view additional results
31 cases
  • People v. Mardian, Cr. 7123
    • United States
    • California Court of Appeals
    • April 9, 1975
    ...are not sufficient evidence to justify conviction) (People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665; People v. Johnson, 5 Cal.App.3d 844, 85 Cal.Rptr. 238), the prosecution need not show that the quantity possessed is capable of producing a narcotic effect on the user. (People......
  • People v. Vargas, Cr. 13535
    • United States
    • California Court of Appeals
    • December 9, 1975
    ...[53 Cal.App.3d 532] prosecution must establish that the ingestion of the pill will produce a drug effect. (See People v. Johnson (1970) 5 Cal.App.3d 844, 849, 85 Cal.Rptr. 238.) Other cases indicate that it is not the effect of the amount discovered which is material, but whether or not the......
  • People v. Reed, No. S136345.
    • United States
    • United States State Supreme Court (California)
    • July 3, 2006
    ...and dissenting opinion claims that People v. Richardson (1970) 6 Cal. App.3d 70, 85 Cal.Rptr. 607 and People v. Johnson (1970) 5 Cal.App.3d 844, 85 Cal. Rptr. 238, and perhaps even People v. Rogers (1971) 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129, somehow support its position. (Conc. & d......
  • State v. Vance, Nos. 6078
    • United States
    • Supreme Court of Hawai'i
    • November 13, 1979
    ...the possession of "a" or "any" narcotic drug. People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665 (1966); People v. Johnson, 5 Cal.App.3d 844, 85 Cal.Rptr. 238 (1970); Beutler v. State, 88 Nev. 707, 504 P.2d 699 (1972); See also State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962); ......
  • Request a trial to view additional results

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