PEOPLE v. BONNER

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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roland BONNER, Defendant and Appellant.

Cr. 30598.

Decided: August 30, 1978

Stephen Gilbert, Santa Monica, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was convicted of two counts of possession for sale of a controlled substance (Health & Saf.Code, s 11351). In count 1 the substance was heroin; in count 2, cocaine. He was sentenced to serve a term in the state prison. He now appeals the judgment of conviction, asserting (1) insufficiency of evidence, (2) ineffectiveness of trial counsel, and (3) issues relating to the applicability and constitutionality of Penal Code section 1203.07.

1. Sufficiency of Evidence.

A search warrant was issued authorizing a search of defendant's home at 11021/4 West 98th Street for narcotics, narcotics paraphernalia, and “items of personal identification.” The warrant was served upon defendant at a location away from his home and he pointed out the key which would open his front door. Inside the residence, officers discovered a number of papers and bills bearing defendant's name.

In a bedroom dresser drawer, the searching officer found: forty-two balloons, each containing heroin; five capsules, each containing cocaine; a quantity of marijuana, a gun, money, “paraphernalia,” and keys to the residence. Elsewhere in the residence, the officer found a funnel, a sifter, and two packages of balloons. In the expert opinion of the officer, the “paraphernalia collectively” would commonly be used for packaging narcotics for sale.

No defense was presented.

Conceding that the above evidence adequately supported a finding that he had dominion and control over the narcotics, defendant contends that the evidence was totally lacking as to two other necessary elements of the offense knowledge of presence of the narcotics and knowledge of their narcotic character. We find the circumstantial evidence of knowledge of both facts was sufficient.

It is certainly inferable from the presence of the various narcotics in defendant's bedroom dresser drawer that he was aware of the presence of the contraband. (People v. White (1969) 71 Cal.2d 80, 83, 75 Cal.Rptr. 208, 450 P.2d 600; People v. Bustamente (1971) 16 Cal.App.3d 213, 219-220, 94 Cal.Rptr. 64.) And while even “the mere possession of a narcotic constitutes substantial evidence that the possessor of the narcotic knew of its nature” (People v. White, supra, 71 Cal.2d, at p. 83, 75 Cal.Rptr. at p. 210, 450 P.2d at p. 602), here we have far more: the dresser drawer contained a smorgasbord of drugs, and items appropriate for packaging the narcotics were found both in the drawer and elsewhere in the residence. The trial court could reasonably infer that one who possessed the facilities for commercially packaging these substances knew well what they were used for.

2. Inadequacy of Trial Counsel.

The record reflects that defense counsel filed a written motion to suppress evidence in which he argued that the affidavit in support of the search warrant did not contain sufficient facts to constitute probable cause to search defendant's residence. Apparently the motion was never heard. On the day of trial, both defense counsel and the deputy district attorney appeared to be under the impression that the motion had been heard and denied. Defendant now claims that “the failure of his attorney to obtain a ruling on the motion to suppress” constituted a deprivation of his constitutional right to adequate assistance of counsel. He argues that the affidavit was inadequate on its face and consequently the failure to obtain a ruling resulted in the withdrawal of a crucial defense. (In re Beaty (1966) 64 Cal.2d 760, 764, 51 Cal.Rptr. 521, 414 P.2d 817; People v. Mattson (1959) 51 Cal.2d 777, 790-791, 336 P.2d 937.) Since we conclude that the affidavit supported the issuance of the search warrant, there was no denial of the right to effective counsel.

The affidavit supporting the search warrant was prepared by Officer George E. Robison. Officer Robison had had six years experience investigating narcotics violations and had testified as an expert on illicit drugs on “over three hundred occasions . . .” The information in the affidavit had been supplied by three confidential informants, all of whom had proved reliable in the past. Moreover, the three informants corroborated each other by telling substantially the same story.

Each of the informants knew a John Brown as “the head of a major narcotics trafficking organization in the South Central Los Angeles area.” Brown used the “telephone order method” of trafficking heroin: a prospective purchaser would dial 299-7660 Brown's answering service and ask for John. When the call was returned, Brown would arrange for a meeting at a given location. Either Brown or one of his “runners” would then meet the purchaser and consummate the transaction. Informant number one identified the runners as Gerald Pariot and defendant. He provided detailed physical descriptions of both men and supplied the year, make, model and license number of each of the cars used by Brown, Pariot and defendant to make deliveries. Defendant's automobile was described as a 1972 Ford Thunderbird, dark brown, license number 459 FFA. Informant number one also stated that Brown utilized the residences of three women who “sat on” his “working stash” of narcotics. Informant number one had seen two of the women and had been to their homes, where he had seen substantial quantities of drugs. Brown had described the third woman to him and said that she both “sat on” narcotics and made deliveries for him.

In December 1975 and January 1976, informant number one stated that he was purchasing heroin “on almost a daily basis” from Brown, Pariot and defendant. During November and December of 1975, police officers observed three meetings between informant number one and John Brown and one meeting between informant number one and defendant; during those meetings, the officers saw an “exchange” between the participants. Informant number one reported that he had purchased heroin on each of these occasions. After the purchase from defendant during the week of December 29, 1975, officers followed the dark brown Thunderbird he was driving to 11021/4 West 98th Street, the address at which the automobile was registered.

Informant number two provided substantially the same information as informant number one. He had been purchasing heroin from Brown, Pariot and defendant using the telephone order method “on a continuous basis over several months.” He had also been to Gerald Pariot's residence and obtained heroin from him at that location. He described defendant, defendant's car and the location of defendant's residence and stated that he had last purchased heroin from defendant at a prearranged location during the week of December 28, 1975.

Informant number two had received considerable information about the operation from Brown himself. Brown told him that when he received a telephone order he would either make the delivery himself or would contact Pariot or defendant to make the delivery. Brown also told informant number two that he frequently made deliveries of “large quantities of heroin” to Pariot and defendant for distribution to their customers. Informant number two had ridden with Brown “on a few prior occasions” when Brown delivered heroin to Pariot and defendant.

Informant number three generally corroborated the facts which had been provided by informants one and two.

Based on the above information and his prior experience investigating drug-related crimes, Officer Robison formed the opinion that the residences of Brown, Pariot, the three women, and that of defendant (11021/4 West 98th Street) “are either locations where narcotics are kept as primary working locations where narcotics are kept for deliveries to users, or as a secondary stash location from which narcotics are transferred to the primary locations.”

Defendant first argues that the affidavit “fails to meet the first prong of the Aguilar (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) test” in that “(n)one of the informants could have had personal knowledge of the existence of heroin in Bonner's apartment, for none of them were alleged ever to have been inside that apartment.”

The “first prong” of the Aguilar test requires that, “the affidavit . . . allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; . . .” (People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 787, 454 P.2d 681, 683.) Defendant does not argue however that the affidavit was deficient in its failure to provide a factual basis for the information recounted by the informants;1 instead he contends that there was no factual basis for Officer Robison's inference that narcotics would be found at defendant's residence. His contention does not raise an Aguilar problem, but rather goes to the fundamental question whether the facts reported by the informants constituted probable cause to search the residence.

We conclude that the facts related in the affidavit provided a reasonable basis for the magistrate's conclusion that defendant was storing contraband at his residence. Although there was no observation of defendant making uninterrupted trips from his residence to a sales location (Cf., People v. Flores (1968) 68 Cal.2d 563, 565-566, 68 Cal.Rptr. 161, 440 P.2d 233; People v. Hernandez (1974) 43 Cal.App.3d 581, 585, 118 Cal.Rptr. 53), the information here was that Brown, the head of the heroin ring, made deliveries of heroin to defendant. Moreover, the facts showed a continuous course of conduct in which Brown would contact defendant to make deliveries of heroin. (See People v. Murphy (1974) 42 Cal.App.3d 81, 87, 116 Cal.Rptr. 889.) These facts, coupled with Officer Robison's considerable experience as a narcotics investigator, supported Robison's logical inference that defendant maintained a “primary stash” of heroin at his residence from which he would make withdrawals when he was called upon to effect delivery to his customers. (See People v. Johnson (1971) 21 Cal.App.3d 235, 243-245, 98 Cal.Rptr. 393.) The facts stated in the affidavit, and the reasonable inferences derived therefrom, were sufficient to support a strong suspicion that heroin was present in defendant's residence. In other words, there was probable cause for the search. (Frazzini v. Superior Court (1970) 7 Cal.App.3d 1005, 1013-1014, 87 Cal.Rptr. 32.)

Defendant further maintains that the information in the affidavit established that the only function of the three women was to hold “stashes” of narcotics while the men acted solely as runners; consequently, he argues, while “(t)here may have been sufficient information in that affidavit to justify the search of one or more of these stash pads, . . . there was none to justify the search of (defendant's) home.”

There are several answers to this contention. In the first place, the facts related in the affidavit do not disclose the rigid role definition which defendant suggests. The affidavit indicates that at least one of the women both “sat on” narcotics and made deliveries. By the same token, informant number two had been to the home of one of the “runners” (Gerald Pariot), where he had purchased narcotics. The facts in the affidavit do not support defendant's characterization of the heroin operation as strictly stratified with the women acting solely as holders of the contraband and the men acting solely as distributors.

But more important, the mere fact that the primary role of the women may have been to maintain caches of narcotics is not inconsistent with Officer Robison's conclusion, based upon years of experience with drug traffickers, that the “runners” kept their own inventories of drugs to satisfy the immediate demands of their customers. The officer's familiarity with the techniques commonly used by drug traffickers adds to the weight accorded to his conclusion. (See People v. Williams (1961) 196 Cal.App.2d 726, 728, 16 Cal.Rptr. 836.) We reiterate that the facts in the affidavit provided ample probable cause for the search of defendant's home.

In view of our determination that the affidavit adequately supported the search warrant, counsel's failure to obtain a ruling on his motion to suppress did not deprive defendant of a crucial defense. Indeed, for all we know defense counsel's appraisal of the affidavit may have coincided with our own and he may have determined that to press for a hearing on the futile motion would have been a waste both of his client's money and of the court's time. In any event, there was no deprivation of constitutionally effective assistance of counsel.

3. Penal Code Section 1203.07.

Defendant next argues that the evidence before the court was insufficient to support the judge's finding that he possessed more than one-half ounce of a substance containing heroin, which finding invoked the mandatory sentencing requirements of Penal Code section 1203.07.2 At the sentencing hearing, the trial court found that defendant “had in excess of one half ounce of heroin” and further stated, “for the record, that the reason the sentence is being imposed as it is is that, having made that finding, I have no discretion.”

The evidence presented to the court was sparse indeed. The physical evidence itself the 42 balloons of heroin was not produced. Instead, all counsel stipulated that the substance recovered was heroin. In addition, the officer stated that the 20 balloons seized weighed “15.1 grams gross” and the 22 balloons weighed “20.6 grams gross.”3 The only other evidence even remotely bearing upon the issue was the officer's response to a question about the street value of the narcotics seized:

“I would have to look at the balloons themselves and see what sizes they were. The 20 balloons could have been half-quarters. They could have been spoons. The 20 balloons could have been the 20 balloons were most likely supposedly spoons. So they would be about one gram which would make that about thirty-seven fifty times twenty-two. . . . That's just a wild guess not looking at the narcotics themselves.”

Of course, the above testimony is fraught with ambiguity. It is unclear whether the “thirty-seven fifty” refers to money, gross weight, or net weight. Moreover, the twenty balloons seem to be missing from the calculation. As evidence of the weight of the heroin seized, the officer's testimony is of no real help.

Defendant focuses on the fact that the officer testified only as to the “gross” weight of the items seized that is, presumably, the weight of the heroin plus the weight of the balloons. This “gross weight,” he argues, could give the trier of fact no accurate idea of the net weight of the material inside the balloons.

In response, the Attorney General states that all we need do is take the sum of the gross weights and multiply by the conversion factor of grams into ounces.4 Since the resulting total weight of the balloons and heroin 1.25 ounces “far exceed(s) the necessary one-half ounce required to trigger the applicability” of section 1203.07, the Attorney General argues that it was reasonable for the court to infer that at least .5 ounces of that total weight was due solely to the heroin.

Although the court apparently made just that inference, such an inference could only have been based upon conjecture. The physical evidence was never before court. The balloons themselves could have been composed of the thinnest and lightest latex, or of a heavier gauge of rubber. Whatever their size and composition, if their combined weight was greater than .75 ounces, the substance inside could not have exceeded .5 ounces. Given the multitude of possibilities as to the total weight of the balloons, the trial court was simply in no position to determine that the heroin contained inside of them weighed more than half an ounce.

Moreover, the insubstantiality of the evidence on this point is underscored by the officer's attempt to estimate the value or the weight of the drugs. He candidly characterized that estimate as a “wild guess not looking at the narcotics themselves.” He indicated that the amounts of heroin “ . . . could have been half quarters. . . . could have been spoons.” He emphasized that he “ . . . would have to look at the balloons themselves and see what sizes they were.” The officer's attempted estimate mirrors the court's later estimate of the weight of the heroin. Each was a “wild guess,” rendered without even an observation of the physical evidence, much less any report on the net weight of the heroin.

Substantial evidence is defined as evidence which “reasonably inspires confidence and is ‘of solid value.’ ” (People v. Reyes (1974) 12 Cal.3d 486, 497, 116 Cal.Rptr. 217, 223, 526 P.2d 225, 231; People v. Bassett (1968) 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777.) None of the evidence presented to the trial judge inspires our confidence that he had any way of rationally concluding that the net weight of the heroin possessed by defendant exceeded one-half ounce.

In light of the fact that we affirm defendant's conviction of the two possession for sale counts, there is no necessity for a retrial on the issue of guilt. Therefore, that portion of the judgment finding that defendant possessed in excess of one-half ounce of heroin is stricken and the case is remanded to the trial court for a new probation and sentence hearing, at which time the People shall have an opportunity to prove, in a manner consistent with this decision, that the quantity of heroin possessed by defendant did in fact exceed one-half ounce.5

Affirmed on the issue of guilt. Reversed with respect to sentence imposed and remanded for new sentencing hearing.

FOOTNOTES

1.  Such an argument would be futile. As our paraphrase of the affidavit makes clear, the affidavit was full of factual details and corroboration making it clear that the informants spoke from personal knowledge.

2.  The pertinent portions of section 1203.07 provide:“(a) Notwithstanding the provisions of Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons:“(1) Any person who is convicted of violating Section 11351 of the Health and Safety Code by possessing for sale one-half ounce or more of a substance containing heroin.”

3.  The Attorney General points out that, reading from a property report, the officer testified that a laboratory analysis had also been done on heroin contained in a cellophane cigarette wrapper which weighed “15.7 grams gross.” However, there was no evidence before the court that the cellophane wrapper and the heroin therein had been seized from defendant's residence; the only evidence was that a report on that package and numerous other items had been received.

4.  One gram equals .035 ounces. Thus the equations would be:15.1 g.  20.6 g. = 35.7 g.35.7 g. X .035 = 1.2495 oz.

5.  Defendant's argument that section 1203.07 violates equal protection guarantees is answered in People v. Solorzono, 148 Cal.Rptr. 696, which we have filed simultaneously with this decision, and in which we reject the precise constitutional argument made here.

KAUS, Presiding Justice.

ASHBY and HASTINGS, JJ., concur.