People v. Morales

• Decision Date: 21 February 1968
• Docket Number: Cr. 13281
• Citation: 66 Cal.Rptr. 234,259 Cal.App.2d 290
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ramon Gonzales MORALES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 234

66 Cal.Rptr. 234

259 Cal.App.2d 290

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ramon Gonzales MORALES, Defendant and Appellant.

Cr. 13281.

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

Feb. 21, 1968.

Donald F. Roeschke, Tarzana, for appellant by appointment of the Court of Appeal.

Thomas C. Lynch, Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was found guilty of possession of heroin (§ 11500, Health & Saf.Code); he appeals from the judgment.

On the basis of his own personal knowledge that defendant had been engaged in the sale of narcotics (marijuana and heroin), acquired from his two prior arrests of defendant, one involving a large quantity of marijuana and the other, possession of heroin, and on information received by him from an undisclosed informant that defendant was selling narcotics at his apartment on North Roselake, Officer Ridenour began a surveillance of the premises, in the course of which he saw defendant walk out of the back door of his apartment onto a wooden landing, stand there from three to five seconds 'just looking around,' turn around, face the door, jump up, reach into a drain spout and remove a brown paper sack from the rain gutter above the door, glance around again for several seconds, turn in all directions and re-enter the apartment. Five to ten minutes later one Batista, also personally known to Officer Ridenour to have been arrested for possession of narcotics and as a suspected dealer in large quantities of marijuana and hereoin, parked his car at the rear of defendant's apartment and ascended the rear stairway; when he reached the back door defendant opened it for him, stepped outside and looked around, then both entered the apartment. Five minutes later they stepped outside, engaged in a conversation for a minute and Batista departed.

The officers followed Batista's vehicle to Rosemont where he was trying to negotiate a U-turn; they stopped in front of his vehicle and got out of the car saying, 'Police officers' in a loud voice. Suddenly Batista drove his vehicle into the police car. When Officer Ridenour approached the left door of Batista's vehicle, he saw a piece of paper in Batista's hands; Batista shouted, 'Get out of here, Ridenour' but the officer reached into the window and grabbed Batista by the neck. When Batista tried to tear the piece of paper, the officer could see that it contained a powder; when some of it struck him in the mouth it had the bitter taste of heroin. At this point Batista shifted the car into reverse and accelerated backwards striking another police vehicle. Officer Ridenour, still entangled with Batista, suffered personal injury as a result of the impact. Other officers assisted him in apprehending Batista. When they approached him both of his hands were out of the window attempting to tear the piece of paper. Two officers forced his hand open and removed a portion of a page from a T. V. Guide containing a brownish-colored powder resembling heroin; similar powder was found on the side and in the interior of Batista's vehicle and on the roadway immediately adjacent to the left door. Other papers found on the ground were portions of similar pages from a T. V. Guide. (Batista was charged with possession of heroin, battery on a police officer and a prior felony conviction.)

Immediately after arresting Batista Officer Ridenour and Sergeant Leeds went to defendant's residence. As they stood in front of the rear door they saw defendant through the glass window in the door move toward the doorknob and then brace himself against the door handle with both hands. Sergeant Leeds told him to open the door, 'Police officers,' and shouted, 'Open up, Tito.' They knew that defendant's wife was in the apartment having previously seen her in the kitchen through binoculars. Officer Ridenour testified 'we felt that contraband--narcotics--would be destroyed unless we effected immediate entry,' thus they forced the door open. As they entered the apartment, they heard the commode flushing and water running; in the bathroom the water was running in the bowl. Defendant's wife was in the rear of the apartment. Defendant was arrested and advised of his constitutional rights.

Following the arrest the officers searched the apartment and Officer Ridenour found a thin line of brownish powder resembling heroin on the kitchen table and on the sink. A T. V. Guide was found on a coffee table with several pages removed, and a brown paper sack was in the waste paper basket. The pieces of paper found on Batista matched the torn papers of the T. V. Guide. The three items (Exh. 1) obtained from Batista's car were (1) 0.12 gram of 1 to 5 percent heroin, (2) less than 1 milligram brown material 'insufficient' and (3) .09 gram of 5 percent heroin. Taken from defendant's apartment was 0.12 gram of 1 to 2 percent heroin (Exh. 2). Officer Ridenour testified that the average heroin on the market today runs about 3 to 5 percent; that the average dosage is a capsule containing .09 gram of 3 percent heroin.

Defendant testified that he was not aware of the presence of heroin in his apartment.

Appellant contends that there is insufficient evidence to support the judgment because there is no showing of possession of a quantity of narcotics sufficient for sale or consumption. He argues that since the trial judge made no specific finding on this issue, and People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, and People v. McCarthy, 64 Cal.2d 513, 50 Cal.Rptr. 783, 413 P.2d 671, were decided within a month of the trial, it is likely that the judge did not study them and thus did not decide there was sufficient narcotic for sale or use. The record establishes the contrary and demonstrates appellant's complete lack of good faith in making such a charge.

The transcript of the testimony taken at the preliminary hearing reflects an extensive argument on this issue and a discussion of People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, and People v. McCarthy, 64 Cal.2d 513, 50 Cal.Rptr. 783, 413 P.2d 671, extending over a period of two days--May 13 and 16, 1966. Finally the prosecution recalled Officer Ridenour who testified concerning the average dosage of heroin. Further argument followed and the committing magistrate found the quantity and quality of heroin recovered from defendant's apartment--0.12 gram of 1 to 2 percent heroin--to be 'saleable and useable' within the rule of the Leal and McCarthy cases, and held defendant to answer. The cause was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing. The record shows that the judge read the transcript and that further testimony was taken; then defense counsel argued to the trial judge that the amount of heroin found in defendant's apartment was minimal. While he should have done so, defense counsel failed to mention Leal and McCarthy by name, but it is obvious that these two cases were the legal basis of his argument. In finding defendant guilty, no specific findings were made but implicit in defendant's conviction is the trial judge's finding that the minimal requirements of Leal and McCarthy had been met. Contrary to appellant's claim that these cases were decided only about a month prior to trial and it is unlikely that the trial judge considered them, People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr 777, 413 P.2d 665, and People v. McCarthy, 64 Cal.2d 513, 50 Cal.Rptr. 783, 413 P.2d 671, were decided May 2, 1966, preceding the termination of defendant's trial (November 5, 1966) by a full six months, and while we are entitled to assume in favor of the judgment that the trial judge considered the applicable law in finding defendant guilty, we know him to be long experienced in the trial of criminal cases and as a certainty that long before defendant was tried he was familiar with the rules of Leal and McCarthy.

The officers found in a thin line on the kitchen table, 0.12 gram of 1 to 2 percent heroin which they brushed off into a paper with another piece of paper. The totality of the evidence viewed in a light most favorable to the judgment points to one of two conclusions--that the heroin was either the accidental spillage from the transfer of the narcotic from defendant to Batista (the heroin found on Batista was wrapped in a torn section of a T. V. Guide which matched the torn pages of the T. V. Guide found in defendant's apartment) or that which remained after a hurried destruction of a larger amount of the narcotic by defendant or his wife just before the officers forced the door. (When the officers entered the apartment they heard the commode flushing and water running in the bathroom; defendant's wife was in the bedroom.) In any event, the amount was not minimal but sufficient for one dosage, and the drug was in a saleable or...