Defendant was found guilty of unlawful possession of heroin (Health & Saf. Code, § 11500). On appeal he contends the quantity of heroin seized was insufficient to sustain a conviction for possession of a narcotic.
On November 15, 1963, defendant had been arrested in a hotel lobby for being under the influence of narcotics. As the officers started to search defendant, he said he had a room in the hotel and would rather be searched there. The officers went with defendant to his room and, after searching him, started to search his room. Defendant said as long as they would find his outfit anyway, he would show them where it was, indicating the dresser. The officers searched the dresser and found a blue plastic case containing a syringe, an extra bulb, an extra syringe, a match cover folded over to protect the needle, a measuring spoon, and an ordinary kitchen spoon. There was cotton in the bottom of one of the spoons, and this cotton was still moist.
At the trial a police chemist testified there was a residue on the spoons and the residue contained heroin. The residue on the spoons was visible to the naked eye, he stated, but the heroin crystals themselves were detectable only through chemical testing and by microscopic observation. No analysis was made of the cotton.
AYe believe this case is similar to People v. Aguilar, 223 Cal.App.2d 119 [35 Cal.Rptr. 516], wherein the issue was stated: “Does the possession of two spoons, which are parts *564of 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?” In concluding that it did not, the court held that where a narcotic is imperceptible to the human eye and its presence can only be detected through chemical analysis, the evidence is insufficient to sustain a conviction for known possession of the narcotic. The court distinguished several cases which had held that the presence of a narcotic in a minute amount or in fragmentary form is sufficient to sustain a finding of known possession (People v. Anderson, 199 Cal.App.2d 510, 520 [18 Cal.Rptr. 793]; People v. Marich, 201 Cal.App.2d 462 [19 Cal.Rptr. 909]; People v. Jones, 113 Cal.App.2d 567 [248 P.2d 771]; People v. One 1959 Plymouth Sedan, 186 Cal.App.2d 871 [9 Cal.Rptr. 104]), on the ground that the narcotic in those cases had been found in a recognizable state, while in the case before it the substance was in a different form. “What remained in the bottom of the spoons was residue which was in a completely different form from that of heroin powder.” (223 Cal.App.2d 122.)
Similarly in People v. White, 231 Cal.App.2d 82 [41 Cal.Rptr. 604], police officers in defendant's apartment observed fresh marks on defendant's arms, balloons on the dresser, two spoons containing a visible residue, several eyedroppers, and a hypodermic needle. The court, citing Aguilar, reversed a conviction for possession of heroin. See also People v. Melendez, 225 Cal.App.2d 67 [37 Cal.Rptr. 126]; People v. Cole, 113 Cal.App.2d 253, 262 [248 P.2d 141] (suggesting that a minute quantity of marijuana would not constitute known possession of the narcotic).
We see no reason to distinguish this case from Aguilar and those decisions which have followed it. Plere the traces of heroin on the spoon were not visible to the naked eye. The powder had been liquefied, and the residue which remained was different in form from the original substance. It seems evident that defendant was not aware of the heroin. He voluntarily invited the officers to his room; he offered to show them where his outfit was located; and when Officer Brown, upon finding the outfit, said, “Mr. Sullivan, you have yourself a possession,” defendant answered, “Where? ... I thought he was kidding, you know. ” As said in Aguilar, “It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. *565... The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.” (Pp. 122-123.)
The Attorney General, however, contends a conviction was proper because defendant admitted using narcotics on the morning of his arrest and admitted permitting others to use his room to take a fix, and thus he knew or should have known that a residue of heroin would remain on the spoons. The logic of this contention would convert evidence of recent past possession of narcotics into proof of present possession of narcotics, a proposition which has been implicitly rejected in Aguilar, supra, and in Melendez, supra. Were we to accept evidence of recent past possession of narcotics as equivalent to proof of present possession of narcotics, then we could charge every addict who was currently hot with possession of a narcotic, since he must have had possession of the narcotic in the recent past in order to come under its influence.
While, concededly, there is an element of gamesmanship in securing proof of unlawful possession of narcotics, the criminal law is engaged in a continuous process of drawing lines, and in the enforcement of offenses involving possession of narcotics fixed lines appear to be unavoidable. (People v. Cruz, 61 Cal.2d 861, 866 [40 Cal.Rptr. 841, 395 P.2d 889].) To this end we believe the Legislature has established helpful guidelines in distinguishing the crimes of possession of narcotics paraphernalia (Health & Saf. Code, § 11555) and of being under the influence of narcotics (Health & Saf. Code, § 11721), both misdemeanors, from the more serious crime of possessing the narcotic itself (Health & Saf. Code, § 11500), a felony. This distinction is pertinent to the present case where the evidence shows that defendant was in possession of a narcotics kit and was under the influence of narcotics ; but does not support the charge that he knowingly possessed heroin.
We conclude that possession of a minute crystaline residue of narcotic not intended for consumption or sale and useless for either of these purposes is insufficient evidence to sustain a conviction for known possession of a narcotic.
Judgment reversed.
Roth, P. J., concurred.