People v. Marich

• Decision Date: 16 March 1962
• Docket Number: Cr. 7972
• Citation: 19 Cal.Rptr. 909,201 Cal.App.2d 462
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick MARICH, Defendant and Appellant.

Page 909

19 Cal.Rptr. 909

201 Cal.App.2d 462

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick MARICH, Defendant and Appellant.

Cr. 7972.

District Court of Appeal, Second District, Division 2, California.

March 16, 1962.

John F. Sheffield and Harold, I. Cherness, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Mario A. Roberti, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Convicted by a jury upon two counts of unlawful possession of heroin (Health & Safety Code § 11500) on February 3, 1961 and March 22, 1961, respectively, defendant appeals from the judgment. As to Count I his attorneys argue insufficiency of the evidence and as to Count II unlawful search and seizure.

Court I. The burden of the argument is that the quantity of narcotic found in defendant's possession was so small that it should be disregarded. Counsel say in their brief: '[I]t is defendant's contention that a minimum amount of narcotics must be in the defendant's possession in order to be in violation of said section. * * * It is submitted that a Rule of Thumb to be followed in cases of this type requires that there be at least a minimum amount of narcotics, to-wit: that the amount of narcotics which must be shown to constitute violation of 11500 of the Health and Safety Code should be that amount which after testing by the chemist would leave over and above that test a sufficient amount remaining so that if defendant or any other agency should seek to test these same narcotics chargeable to the defendant, that there be enough for such a test over and above that amount used by the chemist testifying in such a case.' No authority is cited in support of these propositions and the cases are to the contrary.

Armed with a search warrant, police officers went to appellant's apartment on February 3, 1961. Upon observing numerous puncture wounds on appellant's left hand, Officer O'Neill placed him under arrest for narcotic addiction. A search was then made of appellant's bedroom where the officers found in his shoe an eyedropper, rubber bulb, piece of string around the bulb, piece of cotton, a hypodermic needle and a cigarette package. On a table they found a piece of paper on which was a brown stain and which was folded in a manner indicating that at one time it was used as a 'bindle,' i. e., a container for heroin. They also found a partially smoked marijuana cigarette in a vacuum cleaner, some dexamyl, amphetamine, and seconal; and a pipe containing what appeared to be marijuana. Asked, '[i]s this your fit, Nick?' defendant said, 'Yes, it is.' The piece of cotton and the folded paper are the significant items.

The People's expert witness, a forensic chemist, testified that he examined these items of February 27th. He noted 'several powdery fragments present in the folds of the paper.' He stated that '[i]n reference to the piece of dirty cotton I found that that particular piece of dirty cotton had a residue inside the cotton and on the cotton and as a result of a series of chemical examinations, it is my opinion that this residue contains Heroin.' It was likewise his opinion that the powder residue found in the folds of the paper contained heroin. 'Q At the present time as the paper sits before you on the witness stand, is there still any of that residue left in the paper? A I do not see any of it. Q Is it necessary for you to use all of it in the examination, is that correct? A I believe practically all of it was used--utilized in the course of the chemical analysis.' 'Q And in respect to the cotton * * * is there any of the residue left in it at the present time as you look at it there? A There may be residue left. As I recall the piece of cotton was larger than it is now. I cut off a piece of cotton and conducted certain chemical tests upon these pieces of cotton. Q Is there any residue visible to you just right now on the cotton? * * * A No, I would say that there is no powder residue as such is visible to the naked eye. However, I am not saying that it is not there.' He testified that there was a sufficient amount so that a test conducted to determine the presence of heroin would have reliable results. Also 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. It's a possibility.'

It is unlawful under § 11500 to possess 'any narcotic other than marijuana except upon the written prescription of a physician * * *.' (See, People v. Salas, 17 Cal.App.2d 75, 78, 61 P.2d 771.) We recently held, in People v. Anderson, 199 A.C.A. 541, 550-551, 18 Cal.Rptr. 793, 799 that '[t]he cases hold that the statute does not require the possession of any specific quantity of narcotics. (People v. Salas, 17 Cal.App.2d 75, 78, 61 P.2d 771; People v. Jones, 113 Cal.App.2d 567, 569-570, 248 P.2d 771; People v. One 1959 Plymouth Sedan, 186 Cal.App.2d 871, 874, 9 Cal.Rptr. 104.)'

Appellant does not dispute the finding of the expert witness that the powder contained heroin. Nor does he claim that he ever requested and was denied the right to have the substance tested by a defense chemist. (Cf., People v. Washington, 163 Cal.App.2d 833, 843, 330 P.2d 67.) The fact that at the time of trial no substance was visible to the naked eye would not be fatal to the People's case. People v. Anderson, 87 Cal.App.2d 857, 861, 197 P.2d 839, 841: 'Whenever an object, cognizable by the senses, is relevant to an issue in a cause, such object may be exhibited to the trier of fact or its existence, situation and character may be proved by witnesses. Sec. 1954, Code Civ.Proc. In order to sustain a conviction predicated upon the use of a material object in the commission of a crime it is not necessary that such object itself be introduced in evidence.' People v. Shafer, 101 Cal.App.2d 54, 59, 224 P.2d 778, 781: 'It is contended that appellant was denied due process of law in that he was not allowed to have his own chemist test the substance contained in the capsules. There is no authority for such contention, so long as he is confronted by the witnesses against him. The character of tests applied by the police chemist to the powder was described by him on the witness stand. The court was by no legal doctrine or rule inhibited from believing the chemist's testimony that the substance was heroin. [Citation.] In view of such testimony the presence of the capsules in court was not essential to a fair trial.'

People v. Candalaria, 121 Cal.App.2d 686, 689, 264 P.2d 71, 72: 'In support of his argument that the corpus delicti was not established, defendant insists it was not shown that the substance he allegedly furnished Rosamond was...