People v. Karmelich

92 Cal. App. 3d 452, 154 Cal. Rptr. 842, 1979 Cal. App. LEXIS 1691

• Court: California Court of Appeal
• Decided: April 26, 1979
• Docket: Crim. 33040
• Status: Published

Opinions

Opinion

KINGSLEY, Acting P. J.

Defendants were jointly charged with possession of heroin, in violation of section 11350 of the Health and Safety Code. After a trial by juiy, they were found guilty as charged and sentenced to state prison. They have appealed; we affirm.

On this appeal, defendants contend: (1) That the trial court erred in denying their motion for the identity of an informant; and (2) that the evidence does not support the verdicts of guilt. We reject both contentions.

I

Based on an affidavit stating that the officer had received information both from a tested and from an untested confidential informant, the police obtained a search warrant to search a motel room occupied by the defendants. The untested informant had stated that he had been inside the room and there purchased heroin from the defendants. Defendants duly moved to obtain the identity of the untested informant. The motion was denied. We see no error.

The theory of the defense is that the informant might have testified that only one of the defendants was involved in the sale to him, thus exonerating the other defendant, or that the informant might identify a third person as the seller. However, the record is clear that both defendants were occupants of the room; clothing of both defendants was found there; correspondence addressed to defendant Karmelich was found there; both defendants had been seen entering and leaving the room; a phone call to defendant Samudio from the other defendant, to the room, was intercepted during the search. There is nothing in the record even to suggest the use of the room by any other person. The informant, even if he testified that only one defendant was the seller, would not have negated the fact that both defendants were clearly in control of the room and its contents. In a case charging only possession, only such control of the premises need be shown.

II

The search of the room disclosed, under a carpet, nine balloons containing a substance resembling heroin, together with $120 in currency. Further search of the room disclosed a quantity of other empty balloons and narcotic paraphernalia. At the time of their arrest, both defendants were under the influence of some narcotic and had fresh “marks” indicating recent use of heroin.

On cross-examination, the police chemist testified that he had analyzed the contents of the balloons and determined that they contained heroin. He further testified as follows;

“Q. Did you do any type of a quantitative analysis?

“A. No.

“Q. Do you know what percentages minimum would be required for the various color tests and crystalline tests you’ve indicated took place?

“A. I’ve read the sensitivity of the various tests, and I can only guess most of the tests we use are sensitive to one part in a thousand, which is approximately a tenth of a percent.

“Q. So, based upon that, would it be an accurate statement to say that at least one-tenth of one percent of what you analyzed, in your opinion, would be heroin?

“A. Yes.

“Q. And without doing any type of quantitative analysis which would give the percentage of heroin within the overall volume of the substance from the balloons you can’t tell us whether or not there was any more than . 1 percent heroin?

“A. That’s correct.”

Defendants contend that, based on that testimony, the People failed to prove that the defendants possessed heroin in a usable quantity. We reject that contention.

In People v. Leal (1966) 64 Cal.2d 504 [50 Cal.Rptr. 777, 413 P.2d 665], the Supreme Court explored at length the history and application of the “usable quantity” doctrine. In that case it distinguished, but did not overrule, such cases as People v. Salas (1936) 17 Cal.App.2d 75 [61 P.2d 771], People v. Hyden (1953) 118 Cal.App.2d 744 [258 P.2d 1018], People v. Anderson (1962) 199 Cal.App.2d 510 [18 Cal.Rptr. 793], and People v. Thomas (1962) 210 Cal.App.2d 553 [26 Cal.Rptr. 843], where convictions of possession had been sustained, on the ground that, in those cases, there was found actual narcotics, even though in minute quantities, whereas in Leal, as in People v. Sullivan (1965) 234 Cal.App.2d 562 [44 Cal.Rptr. 524], there was found only the residue showing that an instrument had been used for the preparation of heroin for use. The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this, comparable to the cases distinguished in Leal, where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered.

The judgments are affirmed.

Alarcon, J., concurred.