People v. Lepur, Cr. 1435

• Decision Date: 03 December 1959
• Docket Number: Cr. 1435
• Citation: 175 Cal.App.2d 798,346 P.2d 914
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene M. LEPUR, Defendant and Appellant.

Page 914

346 P.2d 914

175 Cal.App.2d 798

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene M. LEPUR, Defendant and Appellant.

Cr. 1435.

District Court of Appeal, Fourth District, California.

Dec. 3, 1959.

Rehearing Denied Dec. 31, 1959.

Eugene M. Lepur, in pro. per., for appellant.

Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

Defendant appeals from a conviction of possession of a narcotic in violation of section 11500 of the Health and Safety Code after trial before a jury. Defendant was charged with and admitted a prior misdemeanor conviction of possession of a narcotic.

On November 30, 1958, several police officers went to defendant's place of residence armed with a search warrant and entered. Defendant was found sitting in the bedroom in the presence of three other persons, Tellez, Santosuosso and Camacho. A search of the room discovered two stained and sooty spoons which contained a residue of heroin, two hypodermic needles and an eyedropper. These articles were wrapped in a cloth, held together with a rubber band, and lying on a dresser. Several paper-covered packages of heroin were found on the premises, two of them immediately under a chair where defendant had been sitting when the police officers arrived. A search of defendant revealed no narcotics on his person but he had 22 needle puncture marks over a vein on his right arm. One of the police officers present at the time of the arrest stated that he thought defendant was slightly under the influence of a narcotic when arrested.

Robert L. Williams, a medical doctor, testified that he examined defendant on December 1, 1958, and found 22 needle marks in a vein on his right arm. These marks were between two days and two weeks old. The defendant admitted to Dr. Williams that he had been using narcotics and said he had received his last shot of a narcotic two days before the conversation.

Louis Camacho testified for the defense. He said that the narcotics and user's kit found in defendant's home were not the defendant's property and that defendant did not know that Camacho had brought them there.

Camacho testified that he arrived in defendant's home about fifteen minutes before the police officers came in and that after the officers arrived, he surreptitiously tossed the narcotics packages under defendant's chair. He testified that he previously left the narcotics kit on the dresser while combing his hair. On cross-examination Camacho admitted that he was under the influence of narcotics when the officers entered the room, that he had recently been convicted of forging checks and that he had pleaded guilty to possession of narcotics arising out of this incident.

In rebuttal a police officer testified that everybody in the room was kept under surveillance during the search and no one had an opportunity to drop articles on the floor without being seen. At the time of the search Camacho denied any knowledge of the narcotics kit found in the bedroom. When the kit was found, defendant said: 'I knew you would find the kit, but you won't find anything else.'

After all the evidence had been presented but before arguments to the jury the defendant moved the court to relieve the court appointed counsel who had hitherto represented him and grant him a continuance to obtain an attorney of his own choosing. The defendant complained that not all the evidence had been presented to the jury. In response to questions from the court, the defendant stated that he wanted the informer named and forced to come down and 'prosecute', and that he wanted the affidavit supporting the search warrant examined. The court commented that defendant's counsel had given him excellent representation during the trial and denied the motion to relieve counsel.

Defendant contends: (1) That the court erred in permitting a police officer to demonstrate the use of the narcotics user's kit found in his bedroom; (2) That the trial court erred in refusing to order the disclosure of the informer's identity; (3) That the court erred in refusing to relieve defendant's counsel during the late stages of the trial; (4) And that the evidence was insufficient to support the verdict.

The narcotic user's kit was evidence of defendant's knowledge that the substance involved was a narcotic and relevant to the principal issue, i. e., defendant's possession of the drug. People v. Noland, 61 Cal.App.2d 364, 143 P.2d 86. The police officer's testimony as to the method in which these articles were used was relevant to identify the articles and explain their relationship to the needle marks on defendant's arm. People v. Gin Hauk Jue, 93 Cal.App.2d 72, 208 P.2d 717; People v. Hancock, 156 Cal.App.2d 305, 319 P.2d 731.

The trial court did not err in refusing to order disclosure of the informer's identity. There is no evidence in the record here that the informer was a participant in, or a witness to, the offense charged. The search here was conducted under authority of a warrant presumably issued upon a showing made by affidavit. The only statutory means of controverting the facts...