People v. Case

AULT, J. pro tem.* Appellant was charged with selling a dangerous drug (methamphetamine) in violation of section [713119]12 of the Health and Safety Code. He waived trial by jury and was found guilty by the court. Probation was denied and he was sentenced to state prison for the -term, prescribed by law. He appeals from the judgment of conviction. His sole contention is that the evidence was insufficient to establish that a useable quantity of the drug was sold.

The packet containing the drug sold was introduced at the trial. It was stipulated that if a qualified chemist were called as a witness, he would testify that the packet contained the drug methamphetamine. The undercover police officer who made the purchase from appellant was the only witness at the trial. He testified that he paid the appellant $5.00 for the packet of the drug; that what he purchased was commonly called in the narcotic trade a ‘1 five-penny’’ or “nickel” bag, and that it contained approximately one-eighth gram. He further stated that he had on other occasions observed drug users taking methamphetamine and that there was sufficient in the packet to “hit” or “get off” approximately four to five times. He defined “hit” as meaning an injection into the vein and “getting off” as the feeling derived from injecting the drug. No evidence was introduced concerning the quality or strength of the drug contained in the packet.

Under the circumstances, involved, the stipulation that the packet contained methamphetamine, together with the testimony of the undercover police officer, amply support the trial court’s implied finding that a useable quantity of the drug was sold.

It is to be noted that we are not dealing with the crime of possession. Here we have a sale of a drug in a quantity regularly dealt with by the illegal market. The packet did contain methamphetamine and the very fact that appellant sold it for $5.00 in a market transaction indicates his view then that a useable amount was involved. The transaction itself constitutes some evidence that the drug contained in the packet was a useable amount. (People v. Blackshear, 261 Cal.App.2d 65, 67 [67 Cal.Rptr. 662].)

Appellant relies heavily on People v. Leal, 64 Cal.2d 504, 512 [50 Cal.Rptr. 777, 413 P.2d 665], wherein it is stated:

“We conclude that the statutory differentiation of the various crimes as well as the history of the cases culminating in Sullivan show that in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such . . . Hence the possession of a