People v. Johnson

Decision Date24 March 1970
Docket NumberCr. 3788
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. K. Hiram JOHNSON, Defendant and Appellant.
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.

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 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.

In People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, the defendant had been convicted of possession of heroin based upon the discovery of a minute crystalline residue of the narcotic in his home. In reversing the conviction, the Supreme Court reviewed in detail the California cases which had dealt with the question of the quantity of a narcotic necessary to sustain a conviction. It rejected a line of California decisions which had held that proof of possession of 'any' amount of a narcotic substance was sufficient. At page 512, 50 Cal.Rptr. at page 782, 413 P.2d at page 670 the court stated:

'We conclude that the statutory differentiation of the various crimes as well as the history of the cases culminating in Sullivan show that in penalizing a person who possessed a narcotic 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 or residue of such substance.'

In effect the decision stands for the proposition conviction may not be predicated upon possession of a narcotic so limited in quantity or so altered in form as to be useless of narcotic purposes. While the decision in Leal dealt only with narcotic substances, we have no doubt its rationale is equally applicable to restricted dangerous drugs.

At the outset of his instructions the trial judge, in the instant case, stated to the jury:

'I also want to tell you that the statute on possession of these dangerous drugs does not specify any particular amount that has to be possessed, it just says possession. A small amount is possession just as much as a large amount, if the law is violated in other ways.'

This was an inaccurate and incomplete statement of the law. (People v. Leal supra, 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665; People v. McCarthy, 64 Cal.2d 513, 514, 50 Cal.Rptr. 783, 413 P.2d 671; People v. Perez, 267 Cal.App.2d 275, 284, 72 Cal.Rptr. 746.)

In its formal instructions to the jury, the court evidently used CALJIC instruction 701 (defining possession) and 701--A (defining transportation) as revised in 1967 to meet the rule established in People v. Leal, Supra, 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665 and People v. McCarthy, Supra, 64 Cal.2d 513, 514, 50 Cal.Rptr. 783, 413 P.2d 671. However, the qualifying phrase 'in an amount sufficient to be used as a narcotic' (present in each of the...

To continue reading

Request your trial
31 cases
  • People v. Vargas, Cr. 13535
    • United States
    • California Court of Appeals
    • December 9, 1975
    ...and are saleable, the 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 t......
  • People v. Reed, S136345.
    • United States
    • United States State Supreme Court (California)
    • July 3, 2006
    ...the possession of the heroin was a lesser, but necessarily included, offense of the transportation of a narcotic." People v. Johnson (1970) 5 Cal.App.3d 844, 85 Cal.Rptr. 238, disapproved on other grounds in People v. Rubacalba (1993) 6 Cal.4th 62, 66, 23 Cal.Rptr.2d 628, 859 P.2d 708, held......
  • 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......
  • State v. Vance
    • United States
    • Supreme Court of Hawai'i
    • November 13, 1979
    ...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); Edel......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT