People v. Perez
| Decision Date | 07 August 1967 |
| Docket Number | Cr. 286 |
| Citation | 253 Cal.App.2d 288,61 Cal.Rptr. 582 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Garcia PEREZ, Defendant and Appellant. |
W. J. McDermott, Fresno, appointed by the Court of Appeal, for appellant.
Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and Frank O. Bell, Jr., Deputy Attys. Gen., Sacramento, for respondent.
Phillip Garcia Perez and his sometime mistress, Lydia Garcia Reyes, were jointly informed against for violation of section 11500 of the Health and Safety Code in that on or about December 1, 1965, 'they did wilfully and unlawfully have in their possession narcotics, to wit: Heroin, without the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this State.' Lydia Garcia Reyes pleaded guilty to the charge; this appeal, therefore, concerns only Phillip Garcia Perez.
Mr. Perez was represented during the trial by an appointed attorney. His later request for appellate counsel was also granted, and Wallace Quinlisk was named to represent him; that attorney was later relieved, upon his request, from his duty to act further for the appellant, and Mr. Perez filed a comprehensive and able brief; thereafter, at the further request of the defendant for a attorney, W. J. McDermott was appointed to represent him and made an extensive oral argument in his behalf.
The appellant contends:
1) That the evidence is insufficient to justify the verdict;
2) That the court committed prejudicial error by permitting reference to certain prior criminal activity;
3) That the court erroneously instructed the jury;
4) That the district attorney was guilty of gross misconduct.
In weighing the contention that the evidence did not warrant the verdict, it should be noted at the outset that important elements of testimony given by law enforcement officers on the one hand and by defense witnesses on the other were in direct conflict. If the defense told the truth in essential particulars, the conviction should be reversed; on the other hand, if the law enforcement officers testified correctly, it is our conclusion that the facts amply sustain the judgment.
The argument that there was insufficient evidence to sustain the verdict must be considered in the light of the clearly established law that an appellate court is in no sense the trier of fact and that it does not have to be convinced of defendant's guilt beyond a reasonable doubt. That is the function of the jury in the trial court, and it is our duty only to inquire if the circumstances reasonably justify the trier of fact's findings. If we determine that there is substantial evidence to support the conclusion of the jury, it is our duty to sustain the conviction as against that particular attack. (People v. Hillery, 62 Cal.2d 692, 702--703, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Groom, 60 Cal.2d 694, 697, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Rosoto, 58 Cal.2d 304, 321, 23 Cal.Rptr. 779, 373 P.2d 867.)
Armed with a search warrant, three agents of the California Bureau of Narcotic Enforcement, Messrs. Shoemaker, Lacey and Sherwood, together with Fresno Police Department Officers Thrasher and Packard and a representative of the District Attorney's office, entered the home of the defendant Perez, where he lived with his mother. All of the officers but one used the back door of the residence and they moved quickly. As they passed through the kitchen, Miss Reyes was busy burning something; they did not stop there but entered the living room where the defendant Perez was; they seized him and tried to prevent his swallowing what appeared to be, according to their own terminology, a 'balloon,' which was orange in color; it apparently was then successfully swallowed by the defendant. The officers attempted, without success, to induce Perez to vomit up the receptacle and its contents. The appellant was placed under arrest, and Agent Lacey gave him the constitutional warnings then required by law. Appellant informed Agent Shoemaker that he had been in the kitchen previously when he had heard a dog barking outside; he thought the commotion might be caused by the police and he walked into the living room to look out the front window; he also told Agent Shoemaker, with respect to what he had swallowed, The evidence shows that, in the jargon of the world of addiction, the word 'paper' means a quantity of heroin sufficient for a dose or an injection of the drug, wrapped in white paper and of a form and nature familiar to addicts. The appellant also stated to Agent Lacey, 'I am sorry, I swallowed it.' (Later, on the way to the jail, Miss Reyes asked defendant Perez, in the hearing of the officers, if they found any 'stuff' on him, and he replied that he had swallowed it, meaning heroin, according to the expert testimony as to the locution.)
Meanwhile, in the kitchen, Miss Reyes was busy attempting to cover up what apparently were recent preparations for the use of heroin. She burned some of the leavings resulting from the planned use of the drug. The police inferred legitimately from the whole situation that when the law enforcement officers arrived each of the two defendants was about to effect an injection of the forbidden drug.
In the kitchen of appellant's home, the enforcement officers found a single complete set of instruments for the injections: a spoon with a blackened under-base in which it was designed to heat the drug in a few drops of water, a needle and an eye dropper for the purpose of injecting the watered heroin into a vein. Both Mr. Perez and Miss Reyes were habitues, and the record shows that, within a short period of time before the day and hour in question, they had made injections in their arms. Miss Reyes said that the instruments to accomplish the injections were hers and that she had brought them to the Perez house with her. The contrary inference sought to be established by the police was that the paraphernalia was, at the very least, a set of items kept by the appellant for use by him and Miss Reyes and that these various parts of an injecting outfit were in the joint possession of the two defendants.
The testimony of the chemist agent of the California Bureau of Narcotic Enforcement, Mr. Louis Moller, that the various articles constituting the paraphernalia for the taking of a hypodermic injection of heroin contained telltale indications of their contents. The hypodermic needle with a piece of a dollar bill used as a shim or gasket for the eye dropper responded to well-recognized chemical tests by showing that it had contained an opium derivative; the chemical test of the eye dropper established that an alkaloid had been present; it contained traces of heroin. The teaspoon was the article that showed the most heroin. The dark color underneath the spoon was the result of burning; the purpose of the application of fire, usually by a match, to the bottom of such a spoon is 'First, to dissolve the heroin, they actually put the powdered heroin in the spoon with a little water and then they have a piece of cotton that they drop in and they burn the bottom of the spoon to dissolve the heroin and get it in solution. * * *' The heating of the water also tends to make it more acceptable as an injection in that its temperature is thus brought nearer to that of the blood. Mr. Moller testified, 'Actually, the spoon had a lot of sticky substance on the spoon and I put three drops of mercuric iodide, 27 per cent hydrochloric acid, and I took a stirring rod and I stirred it up and then, i poured the stuff off on a microscope slide and then I examined the microscope slide and I got rosettes of yellow crystals'; the latter indicated the presence of heroin. The witness further testified:
'
The only lacking element of the offense, then, up to this point of review was proof of knowledge by appellant that there was heroin present in the house and that it was in fact the drug forbidden by the law. This element was thereafter proven by the testimony of law enforcement agents that in the past the appellant had shown, in conversations with the agents and by the actual use of heroin injections, that he was fully conscious of the nature and character of the drug. This testimony was objected to by the appellant during the trial; and it is under attack, also, in his brief on appeal. We shall discuss in more detail the admission of this evidence at a later point of the opinion.
It should be mentioned in passing that there was also some testimony given by law enforcement officers that the appellant tried to escape. While it is not conclusive, there is some indication in the record that the appellant vainly attempted an escape through the front door after the arrival of the officers, thus indicating consciousness of guilt, but that he was induced to change his mind when he noted the presence of so many officers....
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