People v. Leal

• Decision Date: 09 July 1965
• Docket Number: Cr. 9827
• Citation: 46 Cal.Rptr. 78
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel V. LEAL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 78

46 Cal.Rptr. 78

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel V. LEAL, Defendant and Appellant.

Cr. 9827.

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

July 9, 1965.

Rehearing Denied July 27, 1965.

For Opinion on Hearing, see 50 Cal.Rptr. 777, 413 P.2d 665.

Carlyle Michelman, Los Angeles, for appellant, by appointment of the District Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William L. Zessar, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was charged by information with possession of heroin (§ 11500, Health & Saf.Code) and a prior narcotic felony conviction. (§ 11500) The cause was submitted on the transcript of the preliminary hearing. Pending the proceedings a second and separate information was filed charging him with driving a vehicle while addicted to the use of narcotic drugs. (§ 23105, Veh.Code.) Thereafter defendant withdrew his jury waiver and prior submission and waived double jeopardy; on motion of the People the two cases were consolidated for trial (§ 954, Pen.Code) and defendant waived his right to a jury. On December 6, 1963, the court first heard the Vehicle Code violation and, at the instance of defense counsel, rendered its judgment finding defendant guilty. It then proceeded to hear the narcotic violation. However, after the noon recess defendant failed to appear. Reasonable diligence did not produce the missing defendant (People v. Brown, 102 Cal.App.2d 60, 62, 226 P.2d 609) and a week later judgment was pronounced in his absence (§ 1193, Pen.Code) on the Vehicle Code violation. Later defendant appeared; the court found him guilty of possession of heroin and that he had been previously convicted of a narcotic felony, and sentenced him to the state prison. It appears, and appellant concedes (A.O.B. pp. 8-12), that his appeal from the judgment of conviction of possession of heroin (§ 11500, Health & Saf.Code) is the only one timely filed. Thus the instant appeal is solely from the judgment of conviction of violation of section 11500.

While the Vehicle Code violation which was tried before the instant case, is not before this court on appeal, the evidence supporting the conviction of driving while addicted to narcotics reveals defendant's knowledge of the narcotic nature of the substance heroin. On July 6, 1963, at 2:15 a. m., Officer Clark observed defendant driving a vehicle 55 miles per hour in a 40 mile zone weaving from the center line to the curb lane. The officer, who knew defendant, stopped him and arrested him under an outstanding misdemeanor traffic warrant. At the police station the officer noted scar tissue on the inner part of defendant's arm, that his speech was slow and that he appeared to be under the influence of something (defendant's reactions were slow and the pupils of his eyes were pinpointed). At 7 a. m. on July 7, Officer Dwyer saw defendant in a jail cell; he was vomiting and appeared to be quite sick. Concerned because he was responsible for defendant, the officer asked him what was wrong; defendant replied that he was sick and going through heroin withdrawal. An expert witness interviewed defendant on July 8, 1963, and testified that in his opinion he was addicted to a narcotic on July 6, 1963.

Appellant's contentions relate solely to the narcotic violation (§ 11500, Health & Saf.Code), the facts of which are hereinafter set forth. He claims that the evidence is insufficient to support the conviction; the search and seizure based upon his wife's consent were unlawful; the conviction must be reversed under People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, ¹ and the trial judge should have granted the motion for mistrial and disqualified himself for prejudice.

On April 8, 1963, defendant and his wife brought their 16 year old daughter, Martha, who had run away from home, to the police station. Officer Stone talked to Martha outside of their presence; and she told him she had run away because her father was a narcotic user and had 'items which he used in his narcotic use' concealed in the bathroom of their home. The officer repeated this to defendant's wife and asked her if she was aware of these items in her home; she replied in the negative. He then asked her if she would mind if they went out to the house and checked the bathroom; and she said she did not. The officer drove her to defendant's home where she admitted them to the premises. During this time defendant was still at the police station unaware of his daughter's charges, but free to leave as he was not then under arrest. He was not asked for his consent to search the house. The officers recovered a wad of cotton, a small eyedropper, a hypodermic needle and a small spoon in which was debris containing 1/2 grain of heroin and a wad of cotton; all were found in the medicine cabinet in the bathroom of defendant's home, except for the hypodermic needle which was recovered above the bathroom door.

Upon returning to the police station, Officer Stone had a conversation with defendant during which he arrested him; defendant talked freely and voluntarily with the officers. They asked him what he knew about the items found in the bathroom; he replied that he knew nothing about them. Asked if his wife and daughter used narcotics, he replied in the negative. He stated that he had used narcotics three years before and that was when he had his last fix. He remained silent when asked again if the items found in the bathroom belonged to him, nor did he respond to a question concerning how long he had used narcotics. Officer Stone observed the pupils of defendant's eyes to be 'extremely pinpointed'; a check of both of his arms revealed scar tissue resembling old hypodermic-type needle marks.

Relative to his first contention concerning the insufficiency of the evidence, appellant claims that the debris in the spoon was of such insignificant amount that it could not support a finding that he knowingly possessed heroin.

Capsules sold on the street to addicts are usually 1 1/2 grain size containing 2% to 5% pure heroin, but a dose of pure heroin, about 1/12 of a grain, being adulterated with milk sugar (lactose), is often taken in 1 or 2 grain doses. (See Williams, Narcotics (1963), pp. 9, 163.) It was stipulated at the trial that the spoon recovered from defendant's home contained 1/2 a grain of debris or 'substance [which] was * * * heroin.' Thus, the substance recovered is equal to 25% to 50% of the amount usually sold to addicts. In giving significance to the amount of narcotic involved, it is important to note that we are concerned here not with a seller but with a user, and not with mere 'minuscule scrapings' from a spoon but with a more significant amount of caked substance containing 1/4 to 1/2 of the amount normally sold to users.

Appellant relies chiefly upon People v. Aguilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516. After Aguilar's arrest the police searched his room where they found two brown wrapped packages; he said 'There is nothing in there but an outfit.' The packages contained hypodermic needles, spoons and eyedroppers. Aguilar told the officers that he was using narcotics for more than one month 'real heavy.' A forensic chemist testified that he examined the scrapings from the two spoons and in his opinion they contained heroin, the amount of which is not revealed in the opinion but is described therein as 'minuscule, unrecognizable scrapings.' (p. 120, 35 Cal.Rptr. 516.) The court distinguished Aguilar from various cases 'where the People's evidence disclosed a small quantity of narcotics but in a recognizable state. In such a situation other evidence showing that the particular defendant was a user of narcotics or was otherwise familiar with the nature of the substance has been held sufficient to cast doubt on his disclaimer of knowledge of the possession of the substance' (p. 122, 35 Cal.Rptr. p. 518); included were People v. Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793 (5 milligrams of white powder in a 'substantially empty capsule,' clearly heroin); People v. Jones, 113 Cal.App.2d 567, 248 P.2d 771 (a few fragments of marijuana in a tin can, which defendant knew had contained marijuana); People v. Marich, 201 Cal.App.2d 462, 19 Cal.Rptr. 909 (several powdery particles of heroin in the folds of a paper bindle); and People v. One 1959 Plymouth Sedan, 186 Cal.App.2d 871, 9 Cal.Rptr. 104 (a roach found in defendant's jacket). It concluded 'that under the circumstances of this case, where the narcotic was imperceptible to the human eye and its presence, qualitatively and quantitively, could be detected only with the aid of a forensic chemist and laboratory, the evidence is not sufficient to sustain a conviction of known possession of the narcotic.' (People v. Aguilar, 223 Cal.App.2d 119, 123, 35 Cal.Rptr. 516, 519.)

Quantitively, the substance heroin was not imperceptible to the human eye, as in Aguilar. The debris is clearly visible; our examination of the spoon reveals a crystallized substance caked in the bowl in the center of which is a small wad of cotton. In his testimony Officer Stone referred to this debris as an items separate and apart from other objects recovered from defendant's home. According to stipulation the spoon contained 1/2 a grain of 'substance [which] was heroin.' One grain equals 64 milligrams; thus 32 milligrams of heroin were recovered in the spoon, a far more significant amount than that recovered in People v. Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793 (cert. den. 371 U.S. 836, 83 S.Ct. 60, 9 L.Ed.2d 72). In Anderson officers found in his shirt pocket a capsule containing 'possibly about five milligrams, maybe a little less' (p. 520, 18 Cal.Rptr. p. 799) of a white powder determined by a forensic chemist to be heroin (approximately 1/6 of the amount of heroin recovered in the case at bar); Anderson admitted he had last used...