People v. McCarthy

• Decision Date: 02 May 1966
• Docket Number: Cr. 9585
• Citation: 413 P.2d 671,50 Cal.Rptr. 783,64 Cal.2d 513
• Court: California Supreme Court
• Parties: , 413 P.2d 671 The PEOPLE, Plaintiff and Respondent, v. Robert Lee McCARTHY, Defendant and Appellant.

Page 783

50 Cal.Rptr. 783

64 Cal.2d 513, 413 P.2d 671

The PEOPLE, Plaintiff and Respondent, v. Robert Lee McCARTHY, Defendant and Appellant.

Cr. 9585.

Supreme Court of California,

In Bank.

May 2, 1966.

J. Perry Langford, under appointment by the Supreme Court, and Langford, Langford & Lane, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Leslie F. Bell, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Defendant appeals from a judgment rendered by the court without a jury convicting him of the possession of narcotics in violation of section 11500 of the Health and Safety Code. The prosecution established defendant's four prior felony convictions, including one narcotics violation.

This case raises the same issue as that posed in People v. Leal, Cal., 50 Cal.Rptr. 777, 413 P.2d 665, decided this day, and is controlled by our decision in that case.

On August 22, 1962, officers of the San Diego police called at defendant's home to arrest him on suspicion of grand theft. Upon their arrival at defendant's house, they knocked at the front door; a young girl, who was engaged as a baby-sitter at the house, opened the door. The officers identified themselves and asked to see defendant. The girl stated that defendant was in the house and, according to the testimony of one of the officers, opened the screen door for them.

After the officers had entered, the girl proceeded down the hallway to a rear room, knocked on the door and announced that the officers wanted to speak to defendant. After an interval, the officers likewise knocked on the door and called for defendant. The door opened, and a woman emerged, attired in a bathrobe. She walked past the officers and continued up the hallway. One of the officers peered into the room and, observing defendant inside, placed him under arrest. The officers then conducted a search of the room in the course of which they discovered a norcotics injection outfit. Included in the outfit were two pieces of cotton, one of them wet. In response to questions from the police, defendant acknowledged ownership of the pieces of cotton. A forensic chemist later determined that the pieces bore traces of morphine residue. ¹ The present conviction rests upon defendant's possession of these traces.

After defendant had been taken to jail, he was examined by a police physician who later testified that he had discovered a number of needle marks upon defendant's arms. The physician estimated that the marks were 'from less than a day old to about two weeks old.' He also testified that he had asked defendant whether he used narcotics and that defendant had replied that he had used heroin intravenously in 1955. The defendant also acknowledged to the physician that the marks upon his arms were made by a needle. The record does not indicate that defendant had been advised of his right to counsel and his right to remain silent at the time he spoke to the physician.

Defendant's conviction rested upon his possession of the minute chemical traces which the forensic chemist...