People v. Leal

• Citation: 64 Cal.2d 504,50 Cal.Rptr. 777,413 P. 2d 665
• Decision Date: 02 May 1966
• Docket Number: Cr. 9380
• Court: United States State Supreme Court (California)
• Parties: , 413 P.2d 665 The PEOPLE, Plaintiff and Respondent, v. Manuel V. LEAL, Defendant and Appellant.

Page 777

50 Cal.Rptr. 777

64 Cal.2d 504, 413 P.2d 665

The PEOPLE, Plaintiff and Respondent, v. Manuel V. LEAL, Defendant and Appellant.

Cr. 9380.

Supreme Court of California In Bank.

May 2, 1966.

Carlyle Michelman, under appointment by the District Court of Appeal, and Raymond Gloozman, Los Angeles, for defendant and appellant.

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

TOBRINER, Justice.

Manuel V. Leal was charged by information with possession of heroin. (Health & Saf.Code, § 11500.) He waived a jury trial and the court found him guilty and sentenced him to the term prescribed by law. He appeals from the judgment, contending that the evidence is insufficient to show knowing possession of heroin. For the reasons discussed below, we believe the judgment must be reversed.

Late in the afternoon of April 8, 1963, Leal and his wife brought their young daughter, Martha, to the police station because she had run away from home. Outside the presence of her parents Martha spoke with Officer Stone and told him that she had left the house because her father had been taking narcotics and that he had hidden in the bathroom paraphernalia used by narcotics addicts. Officer Stone questioned Mrs. Leal about the presence of these objects, but she denied any knowledge of them. He asked her if he could go out and check the bathroom himself; she agreed and drove with him to defendant's home. The officer searched the bathroom, finding a wad of cotton, an eyedropper, a hypodermic needle, and a small spoon on which was encrusted one-half grain (approximately 32 milligrams) of crystallized substance later stipulated to contain heroin.

When Officer Stone returned to the station, he questioned defendant and placed him under arrest. The record does not indicate whether the officer advised defendant of his constitutional rights. To Officer Stone's question whether he knew of the items found in his bathroom, defendant asserted a total ignorance. Questioned as to whether he had ever used narcotics, he answered that he had done so three years previously. During this interrogation Officer Stone noticed for the first time that the pupils of defendant's eyes were pinpointed. Checking his arms, the officer observed scar tissue resembling hypodermic needle marks.

The present case requires us to determine whether the possession of implements which bear traces of a narcotic upon them can constitute the possession of the narcotic itself within the meaning of section 11500 of the Health and Safety Code. That statute prescribes heavy penalties for 'every person who possesses any narcotic other than marijuana ¹ except upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this State * * *.'

We sketch the development of the cases which interpret the statute in order to delineate, if possible, the test which the courts have evolved to define the proscribed possession. As we shall point out, some courts, reading the word 'any' in the statute as relating to the quantity of narcotic, as well as to its type, have held that the statutory ban extends to the possession of even the most minute traces. Other courts, as we shall snow, have reversed convictions in such cases. In part, they have relied upon the fact that section 11500 proscribes only the Knowing possession of narcotics. ² These courts have held that the inference of knowledge cannot stand if the evidence discloses only minute quantities of narcotic residues, much altered from their original form. In prt, too, they have evinced a fundamental doubt that the statute, properly construed, applies to the possession of narcotics so limited in quantity or so altered in form as to be useless for narcotic purposes.

In People v. Salas (1936) 17 Cal.App.2d 75, 61 P.2d 771, apparently the first case in point, the appellate court sustained a conviction under the then-prevailing statute, ³ which made it unlawful to 'transport * * * or to have in possession any * * * morphine * * * except upon the written order or prescription of a physician and surgeon * * *.' The evidence in that case established that the defendant had been arrested while driving an automobile, that the car contained a spoon which bore traces of morphine, that the officers had seen defendant 'moving about' inside the car when they sounded their siren, and that the officers found a box containing tablets of morphine at the side of the road 120 feet from the point at which the siren had been sounded. The court affirmed the conviction, holding that the jury could properly find that defendant had thrown the box from the car. The court also observed, apparently by way of an alternative holding: 'It will be noted in this section that it is unlawful to possess Any morphine and no quantity is specified in order to bring one under the provisions of this act.' (P. 78, 61 P.2d p. 772.) ⁴

Upon a showing that a tobacco can in the defendant's possession contained an unspecified quantity of marijuana 'fragments,' the court in People v. Jones (1952) 113 Cal.App.2d 567, 248 P.2d 771, sustained a conviction for possession of marijuana. The court considered the quantity of the narcotic only as it bore on the accuracy of the identification of the fragments.

The facts in People v. Hyden (1953) 118 Cal.App.2d 744, 258 P.2d 1018, disclose that a forensic chemist recovered two milligrams of morphine from implements in the defendant's possession. The defendant urged that the amount recovered was 'insignificant' and could not sustain a conviction under section 11500. The court affirmed the conviction, noting: 'There was no evidence as to the relative effect of two milligrams of morphine, or as to what amount of morphine would be sufficient to be considered of any significance, and it would seem that that matter is not one concerning which judicial notice could properly be taken.' (P. 747, 258 P.2d p. 1020.) Although the court affirmed the conviction, the nature of its response to the defendant's contention suggests receptiveness to the view that the statute has no application to chemical traces with a negligible narcotic potential.

In People v. Anderson (1962) 199 Cal.App.2d 510, 18 Cal.Rptr. 793, the defendant when arrested had in his possession a capsule containing five milligrams of narcotic substance. The defendant contended that this amount was too small to uphold a conviction for possession of narcotics, urging that 'it would be impractical, if not impossible to make any real use of the five milligrams or less involved in this case.' As in Hyden, the court replied that defendant had introduced no Evidence in support of his contention. The court also stated: 'The cases hold that the statute does not require the possession of any specific quantity of narcotics.' ⁵ (P. 520 of 199 Cal.App.2d, p. 799 of 18 Cal.Rptr.)

The evidence in People v. Marich (1962) 201 Cal.App.2d 462, 19 Cal.Rptr. 909, consisted of 'several powdery fragments' of heroin found in the folds of a piece of paper, together with a piece of cotton which contained heroin residue. The court affirmed the conviction, observing that section 11500 makes it illegal 'to possess 'any narcotic other than marijuana. " (P. 465, 19 Cal.Rptr. p. 911; emphasis in the opinion.) Nevertheless, the court also laid stress upon the testimony of the People's expert witness that 'it would be possible for the residue which was present in the cotton and the residue which was present in the folded piece of white paper could be utilizable or used by a person wishing to inject the remains that were present there.' (P. 465, 19 Cal.Rptr. p. 911.)

Perhaps the most unequivocal of the cases which have upheld convictions for the possession of minute quantities of residue is People v. Thomas (1962) 210 Cal.App.2d 533, 26 Cal.Rptr. 843. In that case the defendant possessed two pieces of cotton which were found to bear traces of heroin residue. The court affirmed the conviction, holding that, 'Any quantity that is susceptible of being identified comes within the proscription of the law.' (P. 557, 26 Cal.Rptr. p. 846.) ⁶

Other courts, however, have held that the presence of minute quantities of narcotic debris or residue cannot ground an inference of knowing possession; they have expressed doubt that the statute, properly construed, proscribes the possessions of such traces.

In the first of these cases, People v. Cole (1952) 113 Cal.App.2d 253, 248 P.2d 141, the evidence established the presence of a small quantity of marijuana debris. The District Court of Appeal reversed the conviction, holding that, 'It strains credulity to believe that he (the defendant) knowingly left a single flake in his barber's kit or twelve scattered seeds in his car or a trace in an apparently empty coffee can or knowingly transported these tiny quantities.' (P. 262, 248 P.2d p. 147.)

The most probing of the cases in this line is People v. Aguilar (1963) 223 Cal.App.2d 119, 35 Cal.Rptr. 516. There the police found in the defendant's possession a narcotics injection outfit which included two spoons bearing deposits of heroin. In reversing the conviction, the court placed primary emphasis upon the fact that the heroin on the spoons appeared in the form of crystalline encrustations, rather than in its normal powdery form. The court distinguished prior cases in which the narcotic, although small in quantity, retained its customary appearance. It also made note of the fact that in Marich, 'the residue in the bindle and cotton * * * could be used by a person wishing to inject the remains found to be present.' (P. 121, 35 Cal.Rptr. p. 518.) The court concluded: 'Here, we may infer * * * that heroin in powder form had first been liquefied and the resultant emulsion drawn from the spoons by means of the hypodermic needles and used for injection purposes. What remained in the...