People v. Zapata

Decision Date07 October 1963
Docket NumberCr. 3447
Citation220 Cal.App.2d 903,34 Cal.Rptr. 171
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Ernie ZAPATA, Defendant and Appellant.

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 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 the knowledge of right and wrong as to the act, the person laboring under such infirmity will not be responsible, and the same principle applies where accused has become an addict unable to control his craving for the drug, in which case he will be regarded as insane and irresponsible when committing crime under the influence of the drug of which, being an addict, he is deemed to be an involuntary user, irrespective of whether his addiction resulted from a voluntary or other use of the drug in the first place.'

We shall not attempt the large task of comparing the quoted statement with California principles of criminal responsibility. There are, to be sure, certain analogies between compulsive addiction and insanity. (See 51 Cal.L.Rev. at p. 227.) It is not clear just what kind of 'insanity' defendant is asserting. If it is insanity as defined by the M'Naughton rule, his claim must be rejected because he did not enter a plea of not guilty by reason of insanity and is conclusively presumed to have been sane, so far as sanity is tested by the ability to distinguish between right and wrong. (Pen.Code, sec. 1016; People v Wells, 33 Cal.2d 330, 351, 202 P.2d 53.) There are other kinds of mental disorder which may render a person incapable of crime. (Pen.Code, sec. 26; People v. Gorshen, 51 Cal.2d 716, 727, 336 P.2d 492; People v. Baker, 42 Cal.2d 550, 568-571, 268 P.2d 705; People v. Wells, supra, 33 Cal.2d at pp. 336-357, 202 P.2d at pp. 57-70.) The evidence shows no such mental disorder. Zapata testified that he had been addicted to heroin for three years, that he had used heroin the night before his arrest, that he was 'nervous and sick' and suffering from withdrawal symptoms at the time he made statements to the police. There was no evidence that he was under the influence of narcotics at the time of his arrest, that he was unconscious, or that he was not fully aware of his surroundings and his actions. Even on the assumption--which we make only for the purpose of this discussion--that the helpless condition of a compulsive addict might under some circumstances render the person incapable of crime, there is no evidence of such a condition here. For the one kind of insanity, there is no procedural foundation; for the 'other' no evidentiary foundation.

Additional defense contentions necessitate summarization of the evidence. Sacramento police officers received information from an undisclosed source that a narcotics drop would be made at a Sacramento apartment house in which defendant and his wife were tenants. A wooden fence separated the apartment house property from the alley behind it. Behind the apartment house and inside the fence there was an area for garbage cans. Four officers began a surveillance of the area, stationing themselves in an apartment across the alley. About 11:45 a. m. a black sedan drove up the alley and stopped. The driver got out and went behind the fence to the area where the garbage cans were located. He was out of the officer's sight momentarily, their vision being blocked by the fence. He quickly returned to his car and drove off rapidly, burning rubber.

A few moments later defendant and his wife came down the walk from the front of the apartment house to the garbage can area. The officers approached and identified themselves. Mrs. Zapata was a narcotics offender who was on probation. Two officers questioned Mr. and Mrs. Zapata concerning the automobile while the other two searched the garbage can area. One of the officers looked into the open pocket of Mrs. Zapata's housecoat. At that moment another officer observed defendant pull something from his pocket and drop it to the ground. The object was a blue plastic-wrapped packet. The officer picked it up. It contained a hypodermic needle, a syringe, an eye dropper and a brown powder later identified as heroin. The officers arrested both Zapatas and took them to the police station. At the time of his arrest defendant stated that he had found the packet in the garbage can and did not know why he had put it into his pocket. Later he admitted that the heroin and the other contents of the blue packet were for his own personal use. At the trial both Zapatas testified that the officers threatened to cause revocation of Mrs. Zapata's probation unless her husband 'copped out' to a charge of possession. Zapata testified that these threats induced him to admit possession. The officers, however, testified that he made his statements voluntarily and without threat or inducement. Defendant testified that he was heavily addicted to narcotics, was using it daily and had been addicted for approximately three years. At his trial he denied knowledge or possession of the blue packet.

One contention on appeal is insufficiency of the evidence to support the finding of possession. The test on appeal, of course, is whether there was substantial evidence to support the conclusion of the fact trier. The transcript reveals evidence which is not only substantial but utterly convincing. Of particular interest to the trial judge must have been defendant's testimony denying possession, in its stark contrast with his statement to the arresting officers that he had picked up the packet in ignorance of its contents, his later testimony that he was using heroin daily and the officer's testimony that he had seen defendant drop the packet. The present contention is nothing short of frivolous.

Defendant urges that his confession was coerced by threats to revoke his wife's probation. The evidence of coercion was in conflict. The officers' denial of threats furnishes substantial evidence to support the trial court's finding of voluntariness, and we will not disturb that finding. (People v. Montano, 184 Cal.App.2d 199, 210, 7 Cal.Rptr. 307.)

Citing Gascon v. Superior Court, 169 Cal.App.2d 356, 337 P.2d 201, defendant contends that the heroin packet was not admissible, being the product of an illegal search and seizure. Gascon had thrown away a package of marijuana after the officers threatened to conduct an illegal search of his person, illegal because there were no suspicious facts to constitute probable cause for an arrest and search. Under these circumstances the marijuana was illegally obtained evidence. (See also People v. Macias, 180 Cal.App.2d 193, 4 Cal.Rptr. 256.) The Gascon opinion itself points out a distinction which applies here: 'If probable cause had existed for the petitioner's arrest it would be of no moment that they [the police officers] attempted a search of defendant's person before making the arrest rather than afterward.' (169 Cal.App.2d at p. 358, 337 P.2d at p. 202.)

In the present case there was probable cause to spare. Defense counsel did not demand the identity of the informer who had told the police of the coming narcotics 'drop'; hence the anonymous character of the information is of no moment on appeal. (Priestly v. Superior Court, 50 Cal.2d 812, 819, 330 P.2d 39.) This information, plus the appearance of Zapata and his wife a few minutes after the black car drove off, plus Mrs. Zapata's known propensity for narcotics, justified the officers at least to the extent of looking into the open pocket of her housecoat. The result was defendant's furtive act of dropping the blue packet. Once it was in plain view, the search was over. (Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; People v. West, 144 Cal.App.2d 214, 219-220, 300 P.2d 729.) We find no illegality in defendant's arrest or in the officers' actions which...

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