Opinion
Rehearing Denied July 27, 1965.
For Opinion on Hearing, see 50 Cal.Rptr. 777, 413 P.2d 665. Carlyle Michelman, Los Angeles, for appellant, by appointment of the District Court of Appeal.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William L. Zessar, Deputy Atty. Gen., for respondent.
LILLIE, Justice.
Defendant was charged by information with possession of heroin (§ 11500, Health & Saf.Code) and a prior narcotic felony conviction. (§ 11500) The cause was submitted on the transcript of the preliminary hearing. Pending the proceedings a second and separate information was filed charging him with driving a vehicle while addicted to the use of narcotic drugs. (§ 23105, Veh.Code.) Thereafter defendant withdrew his jury waiver and prior submission and waived double jeopardy; on motion of the People the two cases were consolidated for trial (§ 954, Pen.Code) and defendant waived his right to a jury. On December 6, 1963, the court first heard the Vehicle Code violation and, at the instance of defense counsel, rendered its judgment finding defendant guilty. It then proceeded to hear the narcotic violation. However, after the noon recess defendant failed to appear. Reasonable diligence did not produce the missing defendant (People v. Brown, 102 Cal.App.2d 60, 62, 226 P.2d 609) and a week later judgment was pronounced in his absence (§ 1193, Pen.Code) on the Vehicle Code violation. Later defendant appeared; the court found him guilty of possession of heroin and that he had been previously convicted of a narcotic felony, and sentenced him to the state prison. It appears, and appellant concedes (A.O.B. pp. 8-12), that his appeal from the judgment of conviction of possession of heroin (§ 11500, Health & Saf.Code) is the only one timely filed. Thus the instant appeal is solely from the judgment of conviction of violation of section 11500.
While the Vehicle Code violation which was tried before the instant case, is not before this court on appeal, the evidence supporting the conviction of driving while addicted to narcotics reveals defendant's knowledge of the narcotic nature of the substance heroin. On July 6, 1963, at 2:15 a. m., Officer Clark observed defendant driving a vehicle 55 miles per hour in a 40 mile zone weaving from the center line to the curb lane. The officer, who knew defendant, stopped him and arrested him under an outstanding misdemeanor traffic warrant. At the police station the officer noted scar tissue on the inner part of defendant's arm, that his speech was slow and Appellant's contentions relate solely to the narcotic violation (§ 11500, Health & Saf.Code), the facts of which are hereinafter set forth. He claims that the evidence is insufficient to support the conviction; the search and seizure based upon his wife's consent were unlawful; the conviction must be reversed under People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and the trial judge should have granted the motion for mistrial and disqualified himself for prejudice.
Advance Report Citation: 62 A.C. 350.
On April 8, 1963, defendant and his wife brought their 16 year old daughter, Martha, who had run away from home, to the police station. Officer Stone talked to Martha outside of their presence; and she told him she had run away because her father was a narcotic user and had 'items which he used in his narcotic use' concealed in the bathroom of their home. The officer repeated this to defendant's wife and asked her if she was aware of these items in her home; she replied in the negative. He then asked her if she would mind if they went out to the house and checked the bathroom; and she said she did not. The officer drove her to defendant's home where she admitted them to the premises. During this time defendant was still at the police station unaware of his daughter's charges, but free to leave as he was not then under arrest. He was not asked for his consent to search the house. The officers recovered a wad of cotton, a small eyedropper, a hypodermic needle and a small spoon in which was debris containing 1/2 grain of heroin and a wad of cotton; all were found in the medicine cabinet in the bathroom of defendant's home, except for the hypodermic needle which was recovered above the bathroom door.
Upon returning to the police station, Officer Stone had a conversation with defendant during which he arrested him; defendant talked freely and voluntarily with the officers. They asked him what he knew about the items found in the bathroom; he replied that he knew nothing about them. Asked if his wife and daughter used narcotics, he replied in the negative. He stated that he had used narcotics three years before and that was when he had his last fix. He remained silent when asked again if the items found in the bathroom belonged to him, nor did he respond to a question concerning how long he had used narcotics. Officer Stone observed the pupils of defendant's eyes to be 'extremely pinpointed'; a check of both of his arms revealed scar tissue resembling old hypodermic-type needle marks.
Relative to his first contention concerning the insufficiency of the evidence, appellant claims that the debris in the spoon was of such insignificant amount that it could not support a finding that he knowingly possessed heroin.
Capsules sold on the street to addicts are usually 1 1/2 grain size containing 2% to 5% pure heroin, but a dose of pure heroin, about 1/12 of a grain, being adulterated with milk sugar (lactose), is often taken in 1 or 2 grain doses. (See Williams, Narcotics (1963), pp. 9, 163.) It was stipulated at the trial that the spoon recovered from defendant's home contained 1/2 a grain of debris or 'substance [which] was * * * heroin.' Thus, the substance recovered is equal to 25% to 50% of the amount usually sold to addicts. In giving significance to the amount of narcotic involved, it is important to note that we are concerned here, Appellant relies chiefly upon People v. Aguilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516. After Aguilar's arrest the police searched his room where they found two brown wrapped packages; he said 'There is nothing in there but an outfit.' The packages contained hypodermic needles, spoons and eyedroppers. Aguilar told the officers that he was using narcotics for more than one month 'real heavy.' A forensic chemist testified that he examined the scrapings from the two spoons and in his opinion they contained heroin, the amount of which is not revealed in the opinion but is described therein as 'minuscule, unrecognizable scrapings.' (p. 120, 35 Cal.Rptr. 516.) The court distinguished Aguilar from various cases 'where the People's evidence disclosed a small quantity of narcotics but in a recognizable state. In such a situation other evidence showing that the particular defendant was a user of narcotics or was otherwise familiar with the nature of the substance has been held sufficient to cast doubt on his disclaimer of knowledge of the possession of the substance' (p. 122, 35 Cal.Rptr. p. 518); included were People v. Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793 (5 milligrams of white powder in a 'substantially empty capsule,' clearly heroin); People v. Jones, 113 Cal.App.2d 567, 248 P.2d 771 (a few fragments of marijuana in a tin can, which defendant knew had contained marijuana); People v. Marich, 201 Cal.App.2d 462, 19 Cal.Rptr. 909 (several powdery particles of heroin in the folds of a paper bindle); and People v. One 1959 Plymouth Sedan, 186 Cal.App.2d 871, 9 Cal.Rptr. 104 (a roach found in defendant's jacket). It concluded 'that under the circumstances of this case, where the narcotic was imperceptible to the human eye and its presence, qualitatively and quantitively, could be detected only with the aid of a forensic chemist and laboratory, the evidence is not sufficient to sustain a conviction of known possession of the narcotic.' (People v. Aguilar, 223 Cal.App.2d 119, 123, 35 Cal.Rptr. 516, 519.)
Quantitively, the substance heroin was not imperceptible to the human eye, as in Aguilar. The debris is clearly visible; our examination of the spoon reveals a crystallized substance caked in the bowl in the center of which is a small wad of cotton. In his testimony Officer Stone referred to this debris as an items separate and apart from other objects recovered from defendant's home. According to stipulation the spoon contained 1/2 a grain of 'substance [which] was heroin.' One grain equals 64 milligrams; thus 32 milligrams of heroin were recovered in the spoon, a far more significant amount than that recovered in People v. Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793 (cert. den. 371 U.S. 836, 83 S.Ct. 60, 9 L.Ed.2d 72). In Anderson officers found in his shirt pocket a capsule containing 'possibly about five milligrams, maybe a little less' (p. 520, 18 Cal.Rptr. p. 799) of a white powder determined by a forensic chemist to be heroin (approximately 1/6 of the amount of heroin recovered in the case at bar); Anderson admitted he had last used the 'stuff' several days before; he was then under the influence of a narcotic. Anderson urged that the five milligrams of heroin is too small an amount to knowingly be in the possession of anyone. (p. 520, 18 Cal.Rptr. 793.) The court rejected this contention saying: 'Also, there were other elements which the jury could consider while giving significance to the small quantity involved. The 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.)' (pp. 520-521, 18 Cal.Rptr. p. 799.)
However, the court in People v. Aguilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516, held that once heroin has been liquefied While a conviction of possession of a narcotic requires evidence of defendant's awareness of the presence of the narcotic (People v. Gory, 28 Cal.2d 450, 456, 170 P.2d 433; People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Aguilar, 223 Cal.App.2d 119, 123, 35 Cal.Rptr. 516), awareness or knowledge 'may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Jackson, 198 Cal.App.2d 698, 704, 18 Cal.Rptr. 214.)' (People v. Groom, 60 Cal.2d 694, 696-697, 36 Cal.Rptr. 327, 329, 388 P.2d 359, 361.) The instant case is unlike Aguilar in that the substance, heroin, consisted of 1/2 a grain or 32 milligrams, an amount not insignificant to a user, and six times the amount of heroin recovered in People v. Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793; further, the substance was visible to the naked eye. As in Anderson, defendant was under the influence of narcotics when arrested; from his physical condition (pupils 'extremely pin-pointed' and scar tissue resembling old hypodermic-type marks on both arms) the inference is reasonable that he was not only under the influence of a narcotic but was also a user familiar with the narcotic character of heroin, narcotic paraphernalia, and the manner in which heroin is prepared and administered. Further pointing to his knowledge of the narcotic nature of the substance found in the spoon is defendant's prior felony narcotic convictions (§ 11500, Health & Saf.Code; § 23105, Veh.Code). (People v. Horn, 187 Cal.App.2d 68, 75, 9 Cal.Rptr. 578 [cert. den. 368 U.S. 846, 82 S.Ct. 76, 7 L.Ed.2d 44]; People v. Linyard, 151 Cal.App.2d 50, 55, 311 P.2d 57.) All of these circumstances give meaning to the small quantity of heroin recovered. (People v.Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793 [cert. den. 371 U.S. 836, 83 S.Ct. 60, 9 L.Ed.2d 72]; People v. One 1956 Porsche Convertible, 175 Cal.App.2d 251, 345 P.2d 986; People v. One 1952 Chevrolet, 128 Cal.App.2d 414, 416-417, 275 P.2d 509.)
However, as in Aguilar, the heroin in the spoon is in the form of a crystallized residue remaining after the evaporation of the water used to liquefy the narcotic for injection purposes. Referring to the residue as a 'completely different form from that of heroin powder' in which '[a]ny non-scientifically trained person, albeit an addict, observing the spoons, likewise would have been unable to detect the presence of heroin since neither powder nor liquid remained' (223 Cal.App.2d p. 122, 35 Cal.Rptr. pp. 518, 519), it is evident that the court based its holding in Aguilar upon a change in form which rendered the narcotic residue unrecognizable to a lay person, even though he be an addict, which thus could not impute knowledge to him. We are unable to adopt the court's reasoning in Aguilar to control the ordinary situation found in the case at bar. It is impossible for us to believe that when a user, who by virtue of his addiction knows that heroin prepared for injection must be mixed with milk sugar and water, liquefies the mixture in a spoon (which liquid he injects with a hypodermic needle) he does not know that when the remaining liquid evaporates, the residue, although in crystallized form, contains a quantity of heroin. It is wholly unrealistic to say that such residue, caked in the bowl of a spoon found with other narcotic paraphernalia in the possession Moreover, if under Aguilar the substance must be in a form recognizable to the addict before knowledge of its narcotic nature can be imputed to him, no user could be convicted of possession of what is commonly known to be heroin--the dry powdered mixture of heroin and milk sugar--for the heroin powder so resembles milk sugar that it often cannot be detected by the naked eye, even by the addict; in fact, the two powders look so much alike when mixed together that users are often 'burned' by unscrupulous peddlers who substitute milk sugar for the narcotic. As hereinabove noted, the typical street sale of heroin contains only about 2% to 5% pure heroin, the bulk of the substance in the 1 1/2 grain capsule being milk sugar. Further, for a conviction of possession of heroin, even in its pure form, it is necessary that the narcotic be identified as such by a forensic chemist. Thus the fact that, for a conviction, a chemist must analyze a substance to determine the presence therein of heroin does not mean that an addict who uses it is not aware of the presence of the narcotic.
People v. Anderson, 199 Cal.App.2d 510, 18 Cal.Rptr. 793 [cert. den. 371 U.S. 836, 83 S.Ct. 60, 9 L.Ed.2d 72], is dispositive of the issue herein. Inasmuch as defendant admitted he had been a user three years before, had been previously convicted of two narcotic felonies, appeared to be under the influence of narcotics at the time of arrest, and previously had used a hypodermic needle; and inasmuch as the heroin substance was recovered in a spoon found with other narcotic paraphernalia in his home, it is reasonable to infer that defendant knew that the caked debris remaining in the spoon contained heroin, and that this and other narcotic paraphernalia recovered from the bathroom of his home belonged to him.
Appellant's second contention, that the search and seizure based upon his wife's consent were unlawful, is without merit. Defendant and his wife voluntarily went to the police station with their daughter. Outside of defendant's presence Officer Stone obtained his wife's consent to search the family home, and took her there. She admitted him and his partner to the premises and consented to a search which resulted in a seizure of the heroin and narcotic paraphernalia. Defendant, unaware of his daughter's charges, that his wife had consented to a search of their home and that she had gone to the house with the officers and admitted them, remained at the station. There is no claim that the consent of defendant's wife was not freely given.
It is the rule in California that a wife may consent to a search of the home she shares with her husband. (IN RE LESSARD (1965), 62 Cal.2d 497, 504, 42 CAL.RPTR. 583, 399 P.2d 39 ; People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577 [cert. den. 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65]; People v. Carter, 48 Cal.2d 737, 312 P.2d 665; People v. Dominguez, 144 Cal.App.2d 63, 300 P.2d 194; People v. Hughes, 183 Cal.App.2d 107, 6 Cal.Rptr. 643; People v. Howard, 166 Cal.App.2d 638, 334 P.2d 105.) In People v. Carter, 48 Cal.2d 737, 312 P.2d 665, after defendant was arrested and removed to the police station, the officers went to his home where his wife admitted them and consented to a search which produced defendant's trousers and shirt. The search and seizure were upheld. Said the court at page 746, 312 P.2d at page 670: 'When the husband is absent from the home, it is the wife who controls the premises, the ordinary household property, the family Cf. People v. Dominguez,
Advance Report Citation: 62 A.C. 516, 524.
Defendant was not at home when the officers were admitted by his wife and her consent to search the premises was given. However, defendant was free to leave the police station for he was not then under arrest, and it is true that he was available to give his permission to enter the home and search it; but it is also true that one who is under arrest is just as available to give his consent, and in such cases the court has held that the wife's permission is sufficient. (People v. Dominguez, supra; People v. Carter, supra; People v. Ingle, supra.) The situation here is no different--defendant, though available, was absent from the home when his wife admitted the officers and permitted the search.
It appears that even if defendant is available and at home the wife still may consent to a search of the premises she shares with him. (People v. Hughes, 183 Cal.App.2d 107, 6 Cal.Rptr. 643.) In Hughes the court upheld a search and seizure where his wife admitted officers to defendant's home and permitted a search at a time when he was at home but in bed asleep. '* * * The question here is whether the fact that the husband was asleep and therefore not in control of the jointly owned property of the spouses vests authority in the wife to admit persons into the home. We think so. We take this position in view of the 'apparent authority' principle enunciated * * * in People v. Howard, 166 Cal.App.2d 638, at page 651, 334 P.2d 105, at page 114:' (p. 114, 63 Cal.Rptr. p. 647.) In Howard the officers were admitted to defendant's apartment by a married woman who had been living with defendant as his mistress; she climbed through a window because the front door was bolted and opened the door for them. The physical evidence was recovered and defendant was found in the apartment hiding in one of the rear rooms. Said the court 166 Cal.App.2d at page 651, 334 P.2d at page 114: 'It is of course, the law that evidence secured in an illegal search is not admissible. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513. However, it is also the law that if the defendant or someone with apparent authority, consents to the entry, and the entry is made in good faith, it is not unlawful. Thus, defendant's mother can give consent to the entry (People v.Michael, 45 Cal.2d 751, 290 P.2d 852); as can the owner of a house in which defendant rents a room (People v. Gorg, 45 Cal.2d 776, 291 P.2d 469; People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513); or the wife of defendant (People v. Dominguez, 144 Cal.App.2d 63, 300 P.2d 194). In People v. Silva, 140 Cal.App.2d 791, 295 P.2d 942, it was held that the brother of defendant's mistress, who lived at the house, could grant consent to an entry. Under these cases, anyone in joint occupancy of the house has authority to permit an entry without a warrant. In the present case, Marlene had told the officers that she was living at the premises with defendant and had been so living for several months.'
PEOPLE V. DORADO, 62 Cal.2d 338, 42 CAL.RPTR. 169, 398 P.2d 361 does not require a reversal; there is here no confession. First, defendant flatly denied to the officers that he knew anything about the items recovered from the bathroom in his home. His only direct admission was that approximately three years ago he had used narcotics. After several other questions to Whatever admissions defendant may have made, we conclude, under the facts and circumstances of this case, that their introduction into evidence, though error, was not prejudicial error. (PEOPLE V. DORADO, 62 Cal.2d 338, 42 CAL.RPTR. 169, 398 P.2d 361 .) Unlike the improper receipt in evidence of a confession, improperly received admissions do not require a reversal unless in light of the entire record the error has resulted in a miscarriage of justice. (PEOPLE V. DORADO, 62 Cal.2d 338, 42 CAL.RPTR. 169, 398 P.2d 361 ; People v. Parham, 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 384 P.2d 1001.) An examination of the record before us convinces us that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the above error. The guilt of Leal is clear and we find nothing in the record to show that he was not fairly tried or that there has been a miscarriage of justice. (People v. Watson, 46 Cal.2d 818, 834, 299 P.2d 243; People v. Cruz, 61 Cal.2d 861, 868, 40 Cal.Rptr. 841, 395 P.2d 889.)
Advance Report Citation: 62 A.C. 350.
Advance Report Citation: 62 A.C. 350.
Advance Report Citation: 62 A.C. 350.
The trial judge first heard the Vehicle Code violation and found defendant guilty thereof; he then heard the Health and Safety Code violation. At the noon recess, defendant failed to appear. Later in his absence the judge pronounced judgment and sentence in the Vehicle Code case; in doing so he examined defendant's very lengthy arrest record. He now claims that the trial judge, having read his criminal record, was prejudiced against him when he later found him guilty of the Health and Safety Code violation, and that he should have granted his oral motion for a mistrial.
We note at the outset that after defendant was tried on the Vehicle Code violation his counsel insisted that the trial judge render judgment thereon before starting the trial of the Health and Safety Code charge; pursuant thereto the judge did just that, and found him guilty. Moreover, it was defendant himself who made it impossible to proceed further on the possession case because of his failure to appear. The circumstances of the judge reading defendant's arrest report before rendering judgment in the possession case were created by defendant's own conduct. Further, had he any objection to having the trial judge proceed in the possession case after he was returned to custody, he should have proceeded under the provisions of section 170(5), Code of Civil Procedure, by filing a verified written statement with the clerk setting forth his objections. Not having done so, he has not preserved his right to complain on appeal. (People v. Kirk, 98 Cal.App.2d 687, 693, 220 P.2d 976; People v. Wade, 150 Cal.App.2d 281, 285, 309 P.2d 841.) Had he wished to disqualify the judge under section 170.6, Code of Civil Procedure, he should have presented his challenge by way of affidavit or statement under oath. (Johnson v. Superior Court, 50 Cal.2d 693, 698, 329 P.2d 5.)
Defendant orally requested the trial judge to declare a mistrial in the possession case on the ground that he was prejudiced against him because he had previously considered his arrest report preparatory to pronouncement of judgment and sentence in the Vehicle Code case. In refusing to grant defendant's request, the trial judge in effect declared that in fact he was not prejudiced against him and could give him a fair and impartial trial; and, in line with the authorities holding that a trial judge who presided over a previous criminal case is not legally disqualified to hear a subsequent criminal case involving the same defendant (People v. Phillips, 30 Cal.App. 31, 33, 157 P. 1003, 1005 [disapproved on other grounds People v. Farmer,
People v. Johnston,For the foregoing reasons the judgment is affirmed.
WOOD, P. J., and FOURT, J., concur.