Court Overturns Murder Conviction of Man Who Sold Cocaine to Victim

An appellate court Tuesday overturned the murder conviction of a Westminster man who sold cocaine to a drug user before the user died of an overdose.

The 4th District Court of Appeal in Santa Ana ruled that there was insufficient evidence to convict Philip Gerald Alviso, now 30, of second-degree murder.

Alviso was the first Orange County resident tried and convicted under the “inherently dangerous felony murder rule,” a statute established to deal with drug dealers who supply drugs to a person who later dies of an overdose.

Alviso was convicted Sept. 17, 1986, exactly four years after Phillip Mikolajek, 22, went into a coma after injecting a large amount of cocaine. He died Sept. 23, 1982, never having regained consciousness.

A year after the death, Alviso confided to an undercover police officer that he had sold a little more than three grams of cocaine to Mikolajek about 11 hours before he convulsed into the coma during a party at an apartment in Stanton.

Superior Court Judge Phillip E. Cox, during a non-jury trial, convicted Alviso of second-degree murder. The judge later sentenced Alviso to 15 years to life in state prison, then suspended the sentence and placed Alviso on five years’ probation.

In reversing the conviction, the appellate court said there had not been sufficient evidence to bring Alviso to trial because the victim apparently also had used cocaine he had gotten somewhere else.

Testimony from Mikolajek’s roommate showed that the victim was “a compulsive user” of cocaine. In the 11 hours from the time Alviso sold Mikolajek the drug until the victim collapsed, Mikolajek injected cocaine at least three times, according to court testimony.

The court, in pointing out that Mikolajek attended a party where other cocaine was present, said the evidence did not support “the trial court’s conclusion Mikolajek’s death was the direct causal result of Alviso’s sale of cocaine earlier that day.”

The appellate court also said the trial judge should not have overlooked evidence that Alviso was not Mikolajek’s sole supplier, “merely a regular one and the seller geographically closest to him.”

Greg Jones, Alviso’s defense attorney, said Tuesday he was “really happy” with the reversal.

“It was not an inherent felony. I am also happy because this is a flat-out dismissal because of insufficient evidence,” Jones said.

The attorney said he had been unable to talk to Alviso, who now installs carpets, after learning of the appellate court’s decision.

“But he talked to my secretary,and he was very happy,” Jones said.