*1 entirely proper. proposed instruct was The refusal so (a B.A.J.I., 138.1) modification was not a instruction assumption proper of risk case. While the instruction an against negli proper contributory a claim of instruction is (Clark gence California, 616, 620 v. State incorrectly assumption 300]) states the law of Assumption of risk is not a matter failure of risk. danger danger anticipate question of consent to a but a (Prosser (2d ed.) actually appreciated. Torts, on known and 303.) assignments remaining completely of error are
Appellant’s merit. without is reversed. Fleming, J., concurred.
Herndon, J., and 16, 1965, and rehearing petition A was denied June Supreme hearing by Court respondent’s petition for a July 14, 1965. was denied May 20, Two. Dist., Div. 1965.] No. 10010. Second
[Crim. PEOPLE, Respondent, THE Plaintiff v. PAUL WORTH Appellant.
SULLIVAN, Defendant and *2 appointment Hecht, the District Court Mervyn L. Appellant. Defendant and Appeal, for Attorney General, Lynch, James, William E. Thomas C. Attorney General, Ernest S. Gould and Charles A. Assistant Deputy Attorneys General, for Plaintiff and Re- Collins, spondent. found
FLEMING, J.Defendant was unlawful possession (Health Code, 11500). appeal heroin & Saf. On § quantity he heroin seized was insufficient to contends the for of a narcotic. sustain a conviction 15, 1963, had in a On November defendant been arrested being lobby influence of narcotics. As hotel under the defendant, to said had a started search he he officers rather be room in the hotel and would searched there. searching and, room after with defendant to his officerswent him, long his room. Defendant said as started search anyway, would find his outfit he show them where would indicating was, The officerssearched the dresser the dresser. plastic a syringe, and an extra found a blue case protect bulb, syringe, match cover folded over to extra an measuring ordinary spoon. spoon, an kitchen needle, and spoons, of one of There cotton the bottom was was moist. cotton still police At testified there was residue trial a chemist contained heroin. The residue spoons on the and the residue eye, stated, visible naked but the spoons crystals on the was only through chem- detectable heroin themselves were analysis by microscopic testing ical observation. No was made of the cotton. People Aguilar, AYe this case is v. 223 Cal. believe similar 516], was App.2d Cal.Rptr. wherein issue 119 [35 parts two are spoons, “Does the which stated:
564
scrapings of which a for
injection kits, from the
of narcotic
heroin,
amount of
to detect a minuscule
able
chemist was
ensic
possession of the narcotic itself?”
the known
constitute
concluding
where a nar
not,
court held that
it did
can
eye
presence
and its
imperceptible to the human
cotic
through
analysis,
chemical
the evidence is
detected
possession of
a conviction for known
to sustain
insufficient
distinguished several cases which
court
narcotic. The
amount
presence of a narcotic
a minute
held that
had
finding
to sustain a
fragmentary form is sufficient
or in
Anderson,
Cal.App.2d 510,
(People v.
199
known
People Marich,
Cal.App.2d 462
Cal.Rptr. 793];
v.
520 [18
Cal.App.2d
People
Jones,
909];
v.
Cal.Rptr.
[248
[19
Plymouth Sedan, 186 Cal.
People
One 1959
771];
ground that the nar
Cal.Rptr. 104]), on the
App.2d 871 [9
recognizable state,
found
had been
cotic
those cases
in a different
it the substance was
case before
while
spoons
in the bottom of the
form. “What
remained
from that
completely
form
in a
which was
residue
(
We of a crystaline conclude minute residue of narcotic not for consumption intended or sale and purposes useless for either of these is insufficient evidence a conviction for sustain known of a narcotic. Judgment reversed.
Roth, J.,P. concurred.
HERNDON, J. I concur in major and, in agree part, opinion my colleagues. with the of I However,
566 process appropriate to deem it set forth the somewhat my reasoning which of leads me the same conclusion. Cal.App.2d opinion, People Aguilar, decision in 223 v. People Cal.Rptr. v. 516], and the decisions later Melendez, 126], People Cal.App.2d Cal.Rptr. 67 [37 Cal.Rptr. 604], which White, 82 [41 radically Aguilar, any promulgate cite and follow do not preclude successful novel rule of criminal which would law except in charges prosecution possession of narcotics of of “fla- apprehended possessor cases where grante delicto.” | majority The vast of crimes are of such a nec- nature that essarily they “past” will constitute crimes in the sense that perpetrated perpetrator were some time before was apprehended, except in those rare and fortuitous instances “caught in which criminal crimes, act.” Even in involving “possession” one, such as the spe- instant of some contraband, may cified which the “act” of commission period governing extend over a time, considerable rules are not different. People Belli, Cal.App. As stated 269, 271 [15 “ possession : order to establish 809] [I]n within the meaning act, necessary prove of said it is immediate and exclusive under the dominion and person charged possession. control with such But no- where do the terms of require, nor, the act so far as our called, any attention has been do interpreting the decisions appellant the act hold as contend, proof seems to that very (Italics at time arrest is essential.” added.) regard Legislature’s Neither Ido pro- enactment of against “being hibitions influence narcotics” “paraphernalia” (neither inor of which ais necessarily posses- included lesser offense within the crime of narcotics) body’s sion of indicative intention to appear They establish different rule. to me to indicate reasonable desire to “cover the field” connection with grievous problem recognition social and a realistic problems proof prevent prosecution often successful serious, more but related, purpose, offenses. Their true therefore, should not be thwarted the enunciation of a prevent prosecution rule which would for the serious more proved beyond offenses eases where their can be commission all doubt. *5 regard developing a rule No reason suggested and I do not has been possessing heroin crime it, have followed Aguilar or those which decision, read the concept. I read novel As creation of such requiring the a a to more than amount no decisions,
these solely upon prosecution is based the that where determination White) or a spoons (Aguilar and alleged possession of in altered narcotic debris contain pipe (Melendez), which a to sustain conviction debris not sufficient form, is such itself possession. for its contraband debris is the say, if the residual That is to itself clearly alleged illegally possessed, no case then to have been has been transformed established where the debris been by past use, or its into chemical reason of a different state eye, or nature where its it is not visible to the naked where only by identity can means its true be determined is such that analysis. However, I not believe that do of scientific chemical combined with other debris, that residual when follows such corpus evidence, to establish the delicti cannot be used “pure” in its state the crime of of contraband crime was effectuated merely because commission such by equipment. means of contraband requires one must be law which that Since no rule of exists committing caught crime, proof in the and since the act legally corpus sufficient thereof need delicti has in fact com- satisfy to trier of fact that crime been very why a could mitted, I can no trier fact not see reason recently possessed been properly that heroin has conclude pos- by person influence of heroin and found under the typical paraphernalia for the use of the session of suited drug residual and identifiable debris and cotton moist therefrom. thereof with still having corpus established, The delicti by person admitting that took a “fix” a statement appear ample support would his con- few hours earlier offense, course, posses- viction for that offense. The shortly apprehension, his a fact which sion of heroin before by proved evidence sufficient to con- has been circumstantial doubt, beyond all reasonable and not vince trier of microscopically possessing detectable debris offense accused was arrested. found when the proof Certainly prior true of the it was by might means other than possession of heroin be established into of the contraband introduction evidence the seizure and People Medina, Thus, itself. Cal.Rptr. 722], Burke, a decision concurred Justice Aguilar, furnishing author of a defendant was convicted of “ September 25, although heroin to a minor on or about 1959” September custody 1960, into until he was not taken proof “past” testimony crime consisted of the of the concerning minor had occurred on the date. what earlier page court stated at 231: qualified expert hearing stated,
“A witness after the testi concerning mony physical upon of the minor effects her of the opinion administered to her defendant that in substance his *6 testimony the substance administered was heroin. The produced by and heard the trier of was sufficient to (People Rios, Cal.App.2d 620, sustain the conviction. 163].)” [274 furnishing necessarily heroin to a minor Since the crime appears heroin, includes lesser offense of it the rendering court in clear to me that the the decision preclude did not to establish a that would con- intend rule “past” narcotic offensesof this kind or that would victions prohibit proof by other than
thereof means the introduction itself. of the contraband my Nearly everyone agrees,
To mind this is as should be. think, traffic in narcotics of our I gravest that the constitutes one through many literally evils. As lives are lost social annually Angeles County in from the its use Los as result Certainly great many more lives are crime of homicide. effectively thereby. tragically In serious ruined view question, the one here in I implications of such offenses as agree promulgation of a rule that would tend cannot friendly control of as a procedure for this evil the the treat police, played the the game and seek” to be between of “hide using illegally of narcotics. Persons purveyors and narcotics, of users the emotionally “sick,” least, and course, at are they or commands, not what we they their sickness do what (Cf. People Victor, 62 normally do or tolerate. would Cal.Rptr. 199, 391].) 398 P.2d 280, 301-304 Cal.2d present participants in narcotic traffic be Whether the pathetically afflicted human or as criminals treated as vicious progressive “disease,” it must caught grip beings of a “con- of a effective “carriers” agreed constitute and iso- Therefore, they must be confined tagious disease.” of our good protection as well for their own lated regarded. lightly should not be their actions society, and protective isolation or treatment should not be ham- Their pered by appli- artificial rules that never have been deemed serious, other, and far less offenses. cable to strong My feeling particularly matter is cases involving “possessor-user.” one such as the instant those present “possessor-user” one where instances, such as the provisions for treatment under committed has been 7, part (§§ III of the Penal chapter 11, title Code 6399- the duration of his treatment will be the 6521),1 custodial initially convicted of whether he was misdemeanor same felony (§ 6451), i.e., 4, article (§6450) or “Release “Discharge Status,” Outpatient and article of Narcotic “possessor-user” qual- fails to It is when Addicts.” ify program (§§ 6450, 6451, 6452), or is for this treatment committing by of the fact that court reason returned to program (§ 6453), unfit for been found to be he has pragmatically severity relevant. of his crime will become hold, effect, It to me that it is not reasonable seems by enacting Health Legislature, section 11721 impose Safety Code, indicated an intent to no more upon “because of ex- a misdemeanor sentence one who than (§ 6453) criminality or for other relevant reason” cessive pos- though guilt the crime of his unfit for treatment even accepted rules of can be established session Certainly such beyond any doubt. criminal law increasingly punish- severe apparent from the intent is not Legislature for criminal violations ments enacted enacting expressed intent or its narcotics laws expressly Penal Code *7 program. of the Section 6399 treatment states: Legislature persons that of the addicted “It is the intent repeated by use of narcotics, reason narcotics or who to are in imminent becoming addicted, danger shall be treated underlying causes, and that such condition and its for such nonpunitive purposes out for not be carried treatment shall addict, person in or imminent protection of for the pre- against himself, but addiction, also danger of protection others and contamination vention public.” added.) (Italics by adoption truly of a an intent be served such
Can appeal present taken from the order must considered as be 1The denying appellant’s before us a new trial since record motion for appellant suspended proceedings referred for all criminal ends with 1237.) (Pen. Code, § 6451. under section examination persons make who are found to he of law that would rule subject only for treatment to misdemeanor sentence unfit committing “caught in the act” of the more serious unless adequately commission has been established? crime whose Although appear appel- it that in the instant case would program may under the narcotic treatment commitment lant’s by by reversal of this and this not be affected our pleaded guilty simultaneously that he reason of the burglary that his reference for examination crime of so offenses, made in connection with both 6451 was under section grave problems re- could create in the usual case reversal subsequent garding validity commitment for treat- (Cf. People Victor, upon that had conviction. ment followed discussing requirement that supra, 280, 295, 62 Cal.2d authority petition express to file must be shown ... “there noting “mutually commitment],” exclusive” [for person to provided by 2, where the be procedures article crime, and article where has been convicted of committed occurred.) no such conviction join because However, I in the reversal in the instant case tried, record that the ease was not nor it clear from the upon theory prosecution based, the conviction was shortly appellant of heroin proved that was had indicated, pre- I believe the evidence arrest. As before his a conviction. That such is more than sufficient sustain sented beyond person convinced all reason- any would be is, violating guilty appellant had section been doubt that able Safety found to Code when he was Health and 11500 of the parapher- narcotics, in influence of under the heroin, and he remnants of the identifiable nalia injection shortly had taken an that he admitted prosecution’s ease. This was the his arrest. before not under the influence of that was Appellant testified he paraphernalia in his arrested, found that when narcotics it, couple had used another who left there had been room used it nor although there he had never he knew was to themselves had administered in the narcotics shared only that he knew he short, appellant admitted it. with kit but denied a “used” narcotic was had “used” possessed narcotic which ever himself had accepted as the trier true If this version therein. found appellant not have been clearly should fact, then in the instant case. appellant according version, to his say, is to since That *8 control the heroin when it dominion or over exercised never had been prior “pure” or “natural” state to the use in its guilty he was never paraphernalia, of the subsequently initially. Certainly he could not become heroin parapher- reason of the of its “gone,” i.e., in his room after the heroin was nalia was left put had the heroin use which was after others expressed Nevertheless, reasoning the trial court its intended. in this connection as follows: irrespective stated, counsel, “As the Court ease, this Court is satisfied where there is cotton ease, and whether it is used, there was used not, again, opinion, immaterial, the Court’s or defendant cotton had been used for an he knew that the injection outfit knew that had been left in his of heroin. He charged knowing possession. with that after He knew or was all—unquestionably cotton, will in such a use there at probability spoon least, debris, heroin, and in all in the just recently used, and it had he states it itself where was used that same afternoon that he was arrested, so the chargeable knowledge.” with that is satisfied he is Court (Italics added.) I therefore concur in of reversal. No. 512. May Fifth
[Civ. Dist. 20, 1965.] CHAPIN, PAUL D. Petitioner, v. THE SUPERIOR COURT OF COUNTY, TUOLUMNE Respondent; JUNE CARO LYN MOONEY al., JOHANSEN et Real Parties in In terest.