Aguilar

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 1 This is the principal question in this appeal.

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…