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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. Tommy FLORES, Defendant and Respondent.


Decided: February 14, 1986

Ira Reiner, Dist. Atty., Donald J. Kaplan and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, James Ferr, and Ronald B. Davey, Deputy Public Defenders, for defendant and respondent.

 Defendant was charged with possession of Phencyclidine (PCP) for sale.   The magistrate dismissed the case at preliminary hearing on the grounds that the evidence was not sufficient to show the commission of a crime.   The People then moved under section 871.5 of the Penal Code for an order directing the magistrate to reinstate the case.   The motion was denied and this appeal followed.   We affirm the Superior Court order.

Defendant was stopped by a police officer for a traffic violation.   When the officer approached the car, in which the defendant was the only occupant, he saw on the passenger seat in plain view a knife.   He ordered the defendant out of the car and placed him in the police vehicle and returned to the defendant's car to remove the knife.   While doing so, he smelled the typical odor of PCP.   He further searched the car and under the driver's seat found a glass jar which emitted the odor of PCP.   At the preliminary hearing the police chemist testified that he had made some preliminary tests of the seized substance and was unable to say for sure that it contained PCP, although he did testify that he was between 75 and 80 percent sure that it contained the controlled drug.   The magistrate dismissed the complaint on the grounds that that was not sufficient evidence of the presence of PCP and under the 871.5 motion the superior court judge agreed and denied the motion to reinstate the complaint.   We affirm.

While the evidence at a preliminary examination does not have to show a certainty of guilt, it must in the most recent language of the Supreme Court give “ ‘some rational ground for assuming the possibility that an offense has been committed.’ ”  (People v. Slaughter (1984) 35 Cal.3d 629, 637, 200 Cal.Rptr. 448, 677 P.2d 854;  italics in original.)   As the defendant points out in his brief, the test performed by the police chemist showed “positive” not only for PCP but for many other drugs.   A third quite simple test requiring no special equipment would have given a result which would have shown the presence or absence of PCP with certainty.   The purpose of preliminary examination, as a long line of cases points out, is to serve both the People and a potential defendant from the bother and expense of a complete trial which is not likely to result in a conviction.   We agree with the magistrate that a police chemist who, while an expert in chemistry, has no special capability for determining the likelihood of the presence of one drug rather than another, for both drugs give the same positive result in the simple test which the chemist has performed.

We cannot conclude that a suspicion is reasonable when the police chemist whose testimony is the cornerstone of the prosecution's case refrains from doing a definitive test to determine whether the substance involved is P.C.P., thus admitting the possibility of burdening a defendant and an overcrowded trial court with an unnecessary trial and the taxpayers with the expense of that trial.

 In the respondent's brief, defense counsel suggests that the search for, and seizure of, the vial of liquid was illegal.   However, the record shows that when the vial was offered, defense counsel specifically stated that he had no objection.   Under those circumstances neither the magistrate, nor the superior court, nor we can consider the argument later made.

The order is therefore affirmed.

I respectfully dissent.

At the preliminary hearing, Los Angeles Deputy Sheriff Ronald Williams testified that respondent was the driver and sole occupant of a vehicle stopped for a traffic violation.   Williams detected “a strong chemical odor indicative of phencyclidine [PCP] emitting from the interior of the vehicle.”   He found the source of the odor to be a clear glass vial with a black top underneath the driver's seat.

Thomas McCleary then qualified as an expert forensic chemist, employed for over 12 years as a senior criminalist with the Los Angeles County Sheriff's Criminalistics Laboratory, and testified that in his career he had made several thousand analyses of material identified as phencyclidine or PCP.   He further testified that he made a quantitative and qualitative examination of the contents of the glass vial in question and found it to be ten milliliters of “most likely phencyclidine.”

His opinion was based on two tests he conducted:  (1) a color green test known as a cobalt thiocycanate test;  and (2) a microcrystalline test known as a potassium permanganate test.   To him both tests were consistent with the “presumptive presence of PCP.”   He performed no further tests, explaining that, “with all phencyclidine suspected materials, for purposes of brevity, we were required by our managers to do only what is known as a preventive testing on the material, not final testing.”   He stated that he had done this particular type of (preventive) testing hundreds of times before.   When pressed to explain what he meant by his opinion that the content of the vial was “most likely” PCP, McCleary responded, “What that means is, in my experience and based upon those analyses that I have had occasion to do final examinations on, all of them that I am aware of have come back containing at least PCP.   Sometimes I've had PCP and other materials that I wasn't aware of which is the preliminary testing, but they've had at least PCP in them.”   He further testified that he did not recall an occasion when he had (later) performed a final test that had not come back as PCP.

Having performed the color screening and microcrystalline tests, when testing for PCP in its liquid form, McCleary testified that he would perform further testing if he had doubts regarding his original results, or, in other words, if he suspected contamination in the sample or another drug that altered the crystalline form, or if he didn't like the resulting shape of the crystalline form itself.   He did not elect to further test in this case, and when asked to estimate the likelihood of phencyclidine being in the vial in terms of percentages replied, “I don't know that I would put a specific value on it.   I would approximate probably seventy five or eighty percent or better.”

Los Angeles Deputy Sheriff Don Raworth testified that, based on his experience as a narcotics detective, a person possessing ten milliliters of liquid phencyclidine found on a vehicle's floorboard would possess it for the purpose of sale.

I believe that the prosecution met its preliminary hearing burden by presenting sufficient evidence to warrant holding respondent to answer to the charge.   Officer Williams seized the distinctly described container of a liquid substance which emitted the strong telltale odor of PCP.   Preliminary testing by an experienced chemist confirmed that suspicion.   The chemist did not feel the need to conduct a third and conclusive test, but stated he would have done so had the matter proceeded to trial.   Lastly, a narcotics detective qualified to opine that the substance was possessed for sale.   Despite the obvious benefit to the criminal justice system of a conclusive qualitative analysis of suspected controlled substances at the earliest possible point in the evolution of a drug prosecution, existing case law satisfies me that the People met their preliminary hearing burden of proof in the instant case.

“[The] burden on the prosecution before the magistrate is quite distinct from that necessary to obtain a conviction before a judge or jury.  ‘Of course, the probable cause test is not identical with the test which controls a jury․  The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime.   But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.  [Citations.]  In other words, “Evidence that will justify a prosecution need not be sufficient to support a conviction.  ․   An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.  [Citations.]” ’  (Taylor v. Superior Court (1970) 3 Cal.3d 578, 582 [91 Cal.Rptr. 275, 477 P.2d 131];  Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197].)”  (See People v. Slaughter (1984) 35 Cal.3d 629, 637, 200 Cal.Rptr. 448, 677 P.2d 854.)

I have concluded that the preliminary hearing magistrate erred in dismissing the complaint and that the superior court similarly erred in denying appellant's motion pursuant to Penal Code section 871.5.

I would reverse the order denying the motion to reinstate the complaint charging respondent with possession of phencyclidine for the purpose of sale.

KINGSLEY, Acting Presiding Justice.

McCLOSKY, J., concurs.

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