People v. Karmelich
| Citation | 154 Cal.Rptr. 842,92 Cal.App.3d 452 |
| Decision Date | 26 April 1979 |
| Docket Number | Cr. 33040 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Kristine Teresa KARMELICH, et al., Defendants and Appellants. |
Quin Denvir and Paul N. Halvonik, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, Jonathan B. Steiner and William Wesley Patton, Deputy State Public Defenders, for defendant and appellant Samudio.
William T. Harter, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant Karmelich.
George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Susan D. Martynec, Deputy Attys. Gen., for plaintiff and respondent.
Defendants were jointly charged with possession of heroin, in violation of section 11350 of the Health and Safety Code. After a trial by jury, they were found guilty as charged and sentenced to state prison. They have appealed; we affirm.
On this appeal, defendants contend: (1) That the trial court erred in denying their motion for the identity of an informant; and (2) that the evidence does not support the verdicts of guilt. We reject both contentions.
Based on an affidavit stating that the officer had received information both from a tested and from an untested confidential informant, the police obtained a search warrant to search a motel room occupied by the defendants. The untested informant had stated that he had been inside the room and there purchased heroin from the defendants. Defendants duly moved to obtain the identity of the untested informant. The motion was denied. We see no error.
The theory of the defense is that the informant might have testified that only one of the defendants was involved in the sale to him, thus exonerating the other defendant, or that the informant might identify a third person as the seller. However, the record is clear that both defendants were occupants of the room; clothing of both defendants was found there; correspondence addressed to defendant Karmelich was found there; both defendants had been seen entering and leaving the room; a phone call to defendant Samudio from the other defendant, to the room, was intercepted during the search. There is nothing in the record even to suggest the use of the room by any other person. The informant, even if he testified that only one defendant was the seller, would not have negated the fact that both defendants were clearly in control of the room and its contents. In a case charging only possession, only such control of the premises need be shown.
The search of the room disclosed, under a carpet, nine balloons containing a substance resembling heroin, together with $120 in currency. Further search of the room disclosed a quantity of other empty balloons and narcotic paraphernalia. At the time of their arrest, both defendants were under the influence of some narcotic and had fresh "marks" indicating recent use of heroin.
On cross-examination, the police chemist testified that he had analyzed the contents of the balloons and determined that they contained heroin. He further testified as follows:
Defendants contend that, based on that testimony, the People failed to prove that the defendants possessed heroin in a useable quantity. We reject that contention.
In People v. Leal (1966) 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, the Supreme Court explored at length the history and application of the "useable quantity" doctrine. In that case it distinguished, but did not overrule, such cases as People v. Sales (1936) 17 Cal.App.2d 75, 61 P.2d 771, People v. Hyden (1953) 118 Cal.App.2d 744, 258 P.2d 1018, People v. Anderson (1962) 199 Cal.App.2d 510, 18 Cal.Rptr. 793, and People v. Thomas (1962) 210 Cal.App.2d 553, 26 Cal.Rptr. 843, where convictions of possession had been sustained, on the ground that, in those cases, there was found actual narcotics, even though in minute quantities, whereas in Leal, as in People v. Sullivan (1965) 234 Cal.App.2d 562, 44 Cal.Rptr. 524, there was found only the residue showing that an instrument had been used for the preparation of heroin for use. The decision in Leal must be limited to such cases, where only a residue unuseable for any purpose, is found; it does not extend to a case such as this, comparable to the cases distinguished in Leal, where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered.
The judgments are affirmed.
I disagree with the majority's holding that the trial court did not err in denying defendants' motions for the identity of an untested informer. The majority's position seems to be that defendants were not entitled to disclosure of the identity of this informer because sufficient evidence was presented from which the trier of fact could conclude that the two defendants were jointly in control of the motel room involved and its contents. The majority takes the view that, in a case in which defendants are charged Only with possession of narcotics, the only matter which the prosecution needs to prove is that the defendants had control of the premises. I do not believe this to be the law.
The law relating to a defendant's right to disclosure of the identity of an informer is well established. The rule can be simply stated: If it appears that an informer is a material witness on the issue of defendant's guilt or innocence and defendant seeks disclosure of the informer's identity, the prosecution must either disclose such identity or incur dismissal of the action. (People v. Hunt (1971) 4 Cal.3d 231, 239, 93 Cal.Rptr. 197, 481 P.2d 205.) In such a situation, nondisclosure deprives the defendant of a fair trial. (Price v. Superior Court (1970) 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721.)
There is no dispute about the showing which a defendant must make to secure disclosure of an informer's identity. A defendant seeking such disclosure bears the burden of demonstrating that there is "a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration." (People v. Garcia (1967) 67 Cal.2d 830, 840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372.)
In the case at bench it is clearly possible that the informer could give testimony which might exonerate one or the other or both of the two defendants. The charge of possession of heroin relates to heroin which was found in the motel room where both defendants had been seen to enter and exit at various times. The Tested informer had given no information to the police officer that such informer had ever been in the motel room involved. The information from the Untested informer was to the effect that, on several occasions, he had made purchases of heroin from each of the defendants in the motel room. It is reasonably possible that the untested informer might testify that when he made a purchase of heroin from defendant Samudio, the heroin was actually obtained by defendant Karmelich or a third person from some area of the motel room, and that defendant Samudio's participation consisted of only a momentary handling of the heroin in passing it from defendant Karmelich or the third person to the informer. The informer might testify that he was advised by Samudio that he, Samudio, had no heroin, and that any heroin which could be purchased was solely that of the codefendant Karmelich or that of the third person.
In similar vein, it is reasonably possible that the untested informer might testify to the reverse, which would place the...
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People v. Delahoussaye, A105109 (Cal. App. 10/5/2007)
......65.) Putting aside whether or not the evidence supported his contention, the Rubacalba court used the phrase to refer to quantities that were far less than what was uncovered here, such when the substance is "a blackened residue or a useless trace." ( Id. at p. 66; see also People v. Karmelich (1979) 92 Cal.App.3d 452, 456 ["The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found."]) . There was a good deal of substantial evidence in the present case to support appellant's conviction. This included the police ......
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People v. Sanchez, B195649 (Cal. App. 6/17/2008), B195649
......That testimony, however, does not establish the heroin was in fact merely "residue" as that term was used in Leal and Rubacalba to refer to the useless byproduct left by certain drugs after they have been ingested. (See People v. Karmelich (1979) 92 Cal.App.3d 452, 456 ["decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this, comparable to the cases distinguished in Leal, where the presence of heroin itself, not a mere blackened residue ......
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People v. Chillis, D053082 (Cal. App. 11/6/2009)
...... at p. 66.) The presence of "actual narcotics, even though in minute quantities" (as opposed to a residue) is sufficient to show possession of a usable amount. ( People v. Karmelich (1979) 92 Cal.App.3d 452, 456.) . Although no witness testified that the methamphetamine was a usable amount, the baggie containing the drug was introduced into evidence and thus would have been viewed by the jury. The jury was instructed that "[u]seless traces" are not usable ......
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People v. Singleton
......( People v . Simmons (1971) 19 Cal.App.3d 960, 966, fn. 2; People v . Leal (1966) 64 Cal.2d 504, 512 ( Leal ).) In People v . Karmelich (1979) 92 Cal.App.3d 452, 456, the court clarified the definition of a usable amount by setting the threshold for a usable amount at anything that exceeds "a residue unusable for any purpose." When the record contains no information suggesting that the substance in question is only a useless trace ......