People v. Vassar

• Decision Date: 30 August 1962
• Docket Number: Cr. 1711
• Citation: 207 Cal.App.2d 318,24 Cal.Rptr. 481
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jim Phillip VASSAR, Defendant and Appellant.

Page 481

24 Cal.Rptr. 481

207 Cal.App.2d 318

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jim Phillip VASSAR, Defendant and Appellant.

Cr. 1711.

District Court of Appeal, Fourth District, California.

Aug. 30, 1962.

Hearing Denied Oct. 24, 1962.

[207 Cal.App.2d 321] Morris Lavine, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Samuel L. Williams, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

Defendant-appellant was charged with and was convicted by a jury of unlawfully, and in violation of Health and Safety Code, section 11502, furnishing, giving and administering a narcotic other than marijuana, to wit, heroin, to a minor, Harry James Montellano, on July 6, 1961.

FACTUAL BACKGROUND

About 10:00 p. m., on July 6, 1961, Harry James Montellano, aged 18, went to defendant's house in Indio in his car, talked to defendant about narcotics, and when defendant asked him if he wanted a 'fix,' Montellano said 'Yes.' Defendant left the Dr. Robert A. Dexter testified that heroin is prepared by dilution in water by the user, usually with the aid of heat to make it dissolve more completely, and then it is drawn up into some type of syringe and injected, usually intravenously, into the vein of the user, commonly on the forepart of the elbow. He testified, in reply to a hypothetical question, that the 18-year-old mentioned in the question undoubtedly received an injection of some hypnotic drug, a drug which was administered in the manner commonly used in the administration of heroin, and most likely it was heroin that was injected. Another qualified expert witness, Joseph H. House, testified, in response to the same hypothetical question, based on the evidence related, that it was his opinion that the man described in the hypothetical question had an injection of heroin. Defendant failed to take the stand and testify.

house for about five minutes and picked up the 'fix' somewhere in the yard and returned. They went in defendant's car to a rock pit, parked, and Montellano watched out for cars while defendant put the 'stuff' into a spoon, added a little water, lighted a match and cooked it. Defendant then put the 'stuff',' which was brown in color, into a hypodemic needle and gave it to Montellano, who injected himself in the arm with the needle. After pulling the needle out, Montellano passed out. Enroute to the city of Indio, and shortly after midnight, defendant had an accident with his car and a police captain saw defendant standing beside the left fender of his parked car. Montellano was unconscious in the vehicle, on the passenger side in the front seat. Another officer took the two men down to be booked. Within 30 minutes thereafter, the captain returned to the scene, made a thorough search of the vehicle and found a clear plastic tube about two inches long and about a quarter of an inch in diameter with certain printing on the side. It was partially under the back portion of the front seat. It was a piece of plastic used in packing hypodermic syringes for shipment to prevent damage to the points. In the early morning hours of July 6, 1961, Dr. Allen J. Fisher examined Montellano at the jail. Montellano was very drowsy; his eyes were closed most of the time. He resisted the doctor's questioning and kept saying, 'Just leave me alone, I want to [207 Cal.App.2d 322] sleep, I want to sleep.' He was under a heavy sedative of some sort. A small puncture mark was found just over a vein on his right forearm.

Defendant produced his sister, who testified that she was present when Montellano came to defendant's house that night; that she talked with him and smelled alcohol on his breath and that she was of the opinion that he was under the influence of alcohol. Defendant called as a witness an officer who searched defendant's premises under a search warrant on June 29 and on July 6 and found no narcotics.

CONSTITUTIONALITY

Defendant's counsel contends that Health and Safety Code, section 11502, is unconstitutional, in that it is vague in failing to define who constitutes a minor within the meaning of that section. (Citing such authority as In re Peppers, 189 Cal. 682, 209 P. 869; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.) We see no merit to this contention. The argument is that Civil Code, section 25, cannot be considered in connection with section 11502 of the Health and Safety Code in determining who is a minor. It is a well-recognized rule that for purposes of statutory construction, the codes are to regarded as blending into each other and constituting but a single statute. (In re Porterfield, 28 Cal.2d 91, 100, 168 P.2d 706, 167 A.L.R. 675; Proctor v. Justice's Court, 209 Cal. 39, 285 P. 312; People v. Darby, 114 Cal.App.2d 412, 422, 250 P.2d 743.) Although section 11502, supra, does not in itself define a minor, section 25 of the Civil Code does. It provides that:

'Minors are all persons under 21 years of age * * * any person who has reached the age of 18 years and thereafter contracts a lawful marriage, or who has contracted a lawful marriage There is no qualifying language in section 25 which limits the use of this definition to the Civil Code or any part thereof. In construing a particular provision of any of the codes, reference can well be made to any of the other codes for clarification. (In re Porterfield, supra, 28 Cal.2d 91, 100, 168 P.2d 706.) In Smith v. Superior Court, 187 Cal.App.2d 609, 10 Cal.Rptr. 1, the court had to determine the meaning of 'minor' as used in Business and Professions Code, section 4234. It looked to section 25 of the Civil Code and integrated the definition of 'minor' therein contained into section 4234 of the Business and Professions Code. Although Health and Safety Code, section 11502, does not define the term 'minor' within the meaning of that section, it is not unconstitutionally vague. Reference to Civil Code, section 25, may be used to determine with certainty the scope of the class of persons delineated as 'minors'. Section 11502 does not abrogate the due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States, as claimed.

and thereafter reaches the age of 18 years, shall in the first instance upon contracting such marriage, and in the second instance upon reaching the age of 18 years, be of the age of majority and be deemed an adult person for the purpose of entering into any engagement or transaction respecting property or his estate, or for the purpose of entering into any contract, or for the purpose of maintaining or defending an action affecting his marital status, including therein any action or proceeding involving his support or the support or custody of children of the marriage, or determination of property rights, the same as if he were 21 years of age.'

In this connection, it is also argued that the court erred in rejecting evidence in reference to the age of Montellano and the claim that he was not a minor under Civil Code, section 25, since he was married when he was 18 and later divorced. That section clearly provides that all persons under 21 years of age are minors. The exception in reference to marriage is clearly set forth. Even if the proffered evidence had been admitted and the instruction based thereon given, it would have no application here. Montellano did not come within the exception. Smith v. Superior Court, supra, 187 Cal.App.2d 609, 10 Cal.Rptr. 1, held that all persons under the age of 21 are minors within the meaning of Business and Professions Code, section 4234, making it a felony to unlawfully furnish any hypnotic or dangerous drug to a minor, though such drug be furnished to a married female over the age of 18.

'The trial judge in a criminal case is only required to instruct the jury on the law relating to the facts established in the case and on matters vital to a proper consideration of the evidence.' (People v. LaGrange, 163 Cal.App.2d 100, 105, 328 P.2d 816, 818.)

(See also People v. Buffum, 40 Cal.2d 709, 724, 256 P.2d 317; People v. Putnam, 20 Cal.2d 885, 890, 129 P.2d 367.)

INSUFFICIENCY OF EVIDENCE

Next, defendant claims that the evidence was insufficient to show that Montellano was injected with a narcotic, to wit, heroin, on or about July 6, 1961. The narcotic content of a substance may be proved by circumstantial evidence. (People v. Sanchez, 197 A.C.A. 664, 668, 17 Cal.Rptr. 230; People v. Rios, 127 Cal.App.2d 620, 621, 274 P.2d 163; People v. Candalaria, 121 Cal.App.2d 686, 690, 264 P.2d 71.)

It is true that Montellano, who was not familiar with heroin, did not testify that it was heroin that was injected into his arm. He did testify that defendant and he were talking about narcotics and that defendant asked him if he wanted a 'fix.' This word has considerable significance in layman's parlance and is so recognized in People v. Kimbley, 189 Cal.App.2d 300, 302, 11 Cal.Rptr. 519, where a 'fix' is defined as the illegal injection of a narcotic.

One expert witness testified in the instant case that the question, 'Do you want a fix?' indicates, in the language of the narcotic user, 'an offer of heroin.' One such witness, Dr. Dexter, testified, in respect to the factual hypothetical question, that the 18-year-od undoubtedly received an injection of some hypnotic drug, most likely heroin. Another expert witness testified that in his opinion it was heroin. Section 11502 of the Health and Safety Code, then in effect, made it an offense to furnish such minor with 'a narcotic,' without naming the particular narcotic. The jury was justified in believing that defendant did furnish Montellano with a narcotic, in violation of the section, and that it was heroin. (People v. Rios, supra, 127 Cal.App.2d 620, 621, 274 P.2d 163.)

In this connection, it is also contended that there was no evidence that defendant was 21 years of age or over; that Health and Safety Code,...