220 Cal.App.2d 903, 3447, People v. Zapata

Docket Nº:3447
Citation:220 Cal.App.2d 903, 34 Cal.Rptr. 171
Opinion Judge:[10] Friedman
Party Name:People v. Zapata
Attorney:[7] S. Carter McMorris, under appointment by the District Court of Appeal, for Defendant and Appellant. [8] Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Roger E. Venturi, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:October 07, 1963
Court:California Court of Appeals

Page 903

220 Cal.App.2d 903

34 Cal.Rptr. 171

PEOPLE of the State of California, Plaintiff and Respondent,


Ernie ZAPATA, Defendant and Appellant.

Cr. 3447.

California Court of Appeal, Third District

Oct. 7, 1963.

Rehearing Denied Oct. 31, 1963.

Hearing Denied Dec. 4, 1963.

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S. Carter McMorris, under appointment by the District Court of Appeal, for Defendant and Appellant.

Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Roger E. Venturi, Deputy Attorney General, for Plaintiff and Respondent.



Defendant Zapata was charged with possessing heroin, in violation of Health and Safety Code section 11500. 1 Convicted after a nonjury trial, he appeals. (1) Relying on Robinson v. California, 370 U.S. 660 [82 S.Ct. 141, 8 L.Ed. 2d 758], he asserts that section 11500 is unconstitutionally applied here.

The Robinson case, decided in June 1962, held that imprisonment for narcotics addiction, viewed as an illness or status rather than an antisocial act, constitutes "cruel and unusual punishment" banned by the Eighth and Fourteenth Amendments to the federal Constitution. Zapata now suggests that the court has "an opportunity to extend or to limit the Robinson doctrine." His addiction to narcotics, he points out, is uncontroverted; his possession of heroin is a product or manifestation of his addiction or compulsive craving; the quantity was not large enough to indicate anything but possession for his own use and in satisfaction of his own craving; hence, by imprisoning him for possession, the state is indirectly punishing him for his addiction.

Inherent in this contention is a distinction between an addict's possession in satisfaction of his compulsive craving and possession for other purposes. The latter, so goes the argument, may be constitutionally punished; the former may not.

In the spate of legal commentary which followed the Robinson decision, several writers have suggested that logic might invite expansion of its doctrine to embrace compulsive, addiction-induced activities, such as use, possession or purchase of narcotics. 2 Defendant, of course, accepts this invitation with alacrity. The invitation rests on an erroneous appraisal of the majority opinion in Robinson. That opinion, as we see it, does not turn on the volitional or nonvolitional character of the conduct which the state seeks to punish. Rather, it aims its thrust at the attempt to punish something which is not conduct, which is instead an affliction or status. To be sure, the compulsive craving which smothers freedom of the will is a frequent ingredient of the affliction or status. Nevertheless, the absence of volition is not the reason for invoking the constitutional ban. 3 The reason is the absence of any conduct at all, the application of punitive measures to a disease which, according to Robinson, is no more punishable than a common cold.

The Robinson case has been viewed in some quarters as a renunciation of traditional penology in its application to narcotics addiction and as a constitutionally inspired demand for treatment-oriented programs. 4 The choice between

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medical and penal approaches must remain primarily in legislative hands. As Mr. Justice White implied in his Robinson dissent, legislatures are in a much better position than courts to adopt enlightened and progressive techniques to meet the narcotics evil. (370 U.S. at p. 689, 82 S.Ct. at p. 1432, 8 L.Ed.2d 758.) The question before us is vastly more simple, a constitutional one: Does Robinson require us to hold that the state cannot constitutionally imprison for addiction-induced possession of heroin?

To answer this question we need only put together two pieces of dictum from the majority opinion in Robinson: 'The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. * * * Such regulation, it can be assumed, could take a variety of valid forms. A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.' (370 U.S. at p. 664, 82 S.Ct. at p. 1419, 8 L.Ed.2d 758.)

True, the quoted statements are only dicta. They demonstrate, nevertheless, that a constitutional ban on imprisonment for compulsive possession is not a hidden or necessary implication of the decision itself. We neither expand nor limit Robinson; we simply follow it. By imprisoning Zapata for possession, the state is penalizing his act, not his craving. Public policy considerations may call for a different approach. The constitutional ban on cruel and unusual punishment does not.

Closely allied to the constitutional contention is the claim that Zapata's addiction is 'physical and mental insanity, rendering the defendant incapable of committing the offense alleged.' The claim is bulwarked by the following passage from 22 C.J.S. Criminal Law § 72, page 223: '* * * if mania or insanity, although caused by the use of a drug, is permanent and fixed in character, so as to destroy...

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