People v. Aguilar

BURKE, P. J.

On rehearing. Does the possession of two spoons, which arc parts of narcotic injection kits, from the scrapings of which a forensic chemist was able to detect a minuscule amount of heroin, constitute the known possession of the narcotic itself

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This is the principal question in this appeal.

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Defendant-appellant Oscar Aguilar and codefendant James Aguilar were charged with the possession of heroin in violation of section 11500 of the Health and Safety Code. They were also charged with three prior felony convictions. Each entered a plea of not guilty and denied the prior convictions. Trial was by the court, each defendant and all counsel having waived trial by jury. Defendant Oscar Aguilar was found guilty and two of the prior felonies alleged were found to be true. Codefendant James C. Aguilar was found not guilty. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law, which sentence was ordered “to run concurrently with any time owing on parole.”

Immediately following the arrest of appellant in the driveway of a motel the officers conducted a search of the motel room occupied by him and his brother. Two brown paper-wrapped packages were found underneath a bed. Upon the officers’ discovery of these packages, appellant stated, “There is nothing in there but an outfit.” The packages contained hypodermic needles, spoons and eye droppers. In a conversation with Sergeant Virgin, appellant stated that he was “hot” (meaning addicted to narcotics) ; that he had done well for a year on the Naline program, but that he had met a fellow who “turned him on again.” He had been using narcotics for more than one month “real heavy.” He related that he was “running” from his parole officer, and that he and codefendant had moved into the motel that day.

William King, a forensic chemist, testified that he examined “debris” (scrapings), found on each of the two spoons discovered in appellant’s motel room, and in his opinion the debris contained heroin.

On petition for rehearing, court-appointed counsel urges that the Legislature intended to separate the crime of possession of narcotics paraphernalia used for unlawfully injecting a narcotic (Health & Saf. Code, § 11555), a misdemeanor, from the more serious offense of possessing the narcotic itself (Health & Saf. Code, § 11500), which it classified as a felony; that the evidence in this case showed appellant and his brother, codefendant, had possession of two used narcotic kits, which they freely admitted; that this is the only offense they are shown to have committed and that to permit evidence of minuscule, unrecognizable scrapings from parts of the kits to be used as evidence of possession of narcotics thwarts the purpose of the Legislature in establishing the