People v. Gardner

• Decision Date: 24 September 1968
• Docket Number: Cr. 13370
• Citation: 71 Cal.Rptr. 568,266 Cal.App.2d 19
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Pat GARDNER, Defendant and Appellant.

Page 568

71 Cal.Rptr. 568

266 Cal.App.2d 19

PEOPLE of the State of California, Plaintiff and Respondent, v. Pat GARDNER, Defendant and Appellant.

Cr. 13370.

Court of Appeal, Second District, Division 5, California.

Sept. 24, 1968.

Hearing Denied Nov. 20, 1968.

Gilbert F. Nelson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Andrea Sheridan Ordin, Deputy Atty. Gen., for plaintiff and respondent.

AISO, ^* Associate Justice Pro Tem.

The trial court, sitting without a jury, found defendant Pat Gardner guilty of a violation of section 11501 of the Health and Safety Code (selling, furnishing, or giving away a narcotic). Following a temporary commitment for diagnostic purposes (Pen.Code, § 1203.03), her request for probation was denied, and she was sentenced to state prison. ¹ She appeals from the final judgment of conviction.

Defendant has advanced several contentions of error. We have concluded that the admission of the testimony of Sergeant W. E. Loeber, Jr., of the Los Angeles Police Department Narcotics Detail as a rebuttal prosecution witness constituted prejudicial and harmful error as claimed by defendant compelling a reversal under Chapman v. State of California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Since the other claimed errors are not likely to arise in the event of a retrial, we consider here only this one issue.

Sergeant Loeber testified over defense objection that when he interrogated the defendant in connection with an earlier charge of using narcotics illegally (Health & Saf.Code, § 11721), he observed scabs and scar tissue on defendant's arms which he opined as having been caused by narcotics' injections, that defendant admitted she had been using heroin on and off for a period of ten years, and that her last injection was just two days prior to the interview. The interview or interrogation took place at 10:40 a.m. on January 22, 1965, less than twenty four hours after her arrest without warrant on January 21, and while confined in jail. The arrest was subsequently judicially determined to be illegal for lack of reasonable and probable cause and the misdemeanor charge thereupon dismissed. The record furthermore fails to affirmatively show that defendant's confession was preceded by any warning ² of her rights under PEOPLE V. DORADO (1965) 62 CAL.2D 338, 42 CAL.RPTR. 169, 398 P.2D 361³.

Lacking any adequate warning and waiver of defendant's Dorado rights, the facts in this case are distinguishable from those in People v. Martin (1966) 240 Cal.App.2d 653, 49 Cal.Rptr. 888 cited by the People both in the trial court and in their appeal brief. Under Dorado the statements were obtained in violation of defendant's right to counsel under the Sixth Amendment. Since the statements were obtained during an illegal confinement, absent an adequate showing that the illegal arrest and confinement had been attenuated as a causative factor, the statements were also inadmissible because of their derivative illegality. (People v. Bilderbach (1965) 62 Cal.2d 757, 767--768, 44 Cal.Rptr. 313, 401 P.2d 921.) The statements also followed Sergeant Loeber's illegal observation of defendant's scabs and scar tissues and the People did not negative the causative relationship between his observations and defendant's statements. (Fahy v. State of Connecticut (1963) 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.

Sergeant Loeber's observation of defendant's arms would not have occurred if defendant had not been held in illegal custody. It was an exploitation of an illegal arrest. '(T)estimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies.' (Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441.) Testimony of Sergeant Loeber's observation of scabs and scar tissue on defendant's arms should have been excluded. (People v. Sesslin (1968) 68 Cal.2d ---, ---, ^* 67 Cal.Rptr. 409, 439 P.2d 321.) Although a hand writing exemplar is not within the protection of the Fifth Amendment privilege because of its nontestimonial nature, Sesslin nevertheless held the exemplar and its derivative 'fruit' inadmissible because it was obtained while the accused was being held under an illegal arrest. We appreciate the fact that the trial court made its ruling as to the admissibility of Sergeant Loeber's observations without benefit of the Sesslin opinion of April 10, 1968, but it nevertheless controls this case still in process of direct review when the Sesslin decision was rendered. (Linkletter v. Walker (1965) 381 U.S. 618, 622, fn. 3, 85 S.Ct. 1731, 14 L.Ed.2d 601.)

The trial court appears to have been of the opinion that statements voluntarily made (non-coerced) may be admitted for the limited purposes of impeachment to offset possible perjury, ⁴ even though the statements had been obtained in violation of Dorado. If the statements had been made in the course of investigation of the charge upon which defendant was being tried in this case, the court would have been clearly wrong. An admission even if uncoerced, but in violation of Dorado, had it been obtained in the course of investigation of the charge being tried, would have been clearly inadmissible even for impeachment purposes. (People v. Green (1965) 236 Cal.App.2d 1, 16-- 17, 45 Cal.Rptr. 744; People v. Barry (1965) 237 Cal.App.2d 154, 161, 46 Cal.Rptr. 727; People v. Zavala (1966) 239 Cal.App.2d 732, 745, 49 Cal.Rptr. 129; Groshart v. United States (C.A.9, 1968) 392 F.2d 172; Wheeler v. United States (C.A.10, 1967) 382 F.2d 998, 1001; Commonwealth v. Padgett (1968) 428 Pa. 229, 237 A.2d 209, 210; State v. Brewton (1967) Or., 422 P.2d 581, 583, cert. den. 387 U.S. 943, 87 S.Ct. 2074, 18 L.Ed.2d 1328.)

The finding by the trial court in this case that the statements were voluntarily made (non-coerced) was not a determination whether a Dorado or Sesslin type of constitutional violation had been exploited or whether the causative effect of the violation had been attenuated as required by Wong Sun v. United States (1963), supra, 371 U.S. 471, 83 S.Ct. 407. ⁵ (People v. Bilderbach (1965), supra, 62 Cal.2d 757, 767--768, 44 Cal.Rptr. 313, 401 P.2d 921; People v. Green (1965) 236 Cal.App.2d 1, 16--17, 45 Cal.Rptr. 744.)

Does the fact that the illegal observation and the statements were obtained in an earlier and separate criminal action, which was the situation in Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503, and in this case, introduce a material factor rendering the rules discussed above inapplicable? In People v. Haston (1968) 69 Cal.2d ---, --- ^**, 70 Cal.Rptr. 419, 444 P.2d 91, our Supreme Court held in the negative where the confession or statement is used to establish an element necessary for a conviction on the current charge on trial. We see no reason for making a distinction even where the later use is limited to impeachment purposes, for the same reasons illegal statements obtained in course of investigation of the charge on trial may not be used for impeachment. Furthermore, here the inherent nature of the statements was such that they logically were not susceptible to confinement for impeachment purposes only. Prior misdemeanor narcotics' offenses are deemed probative of the requisite knowledge of the narcotic nature of the substance possessed. (See e.g. People v. Linyard (1957) 151 Cal.App.2d 50, 55, 311 P.2d 57.) The same test of relevancy would apply to confessions or admissions concerning the prior use of narcotics.

The Walder case has been held recently to have been undermined by the later decision of Miranda v. State of Arizona (1966), supra, 384 U.S. 436, 86 S.Ct. 1602, (Groshart v. United States (C.A.9, 1968), supra, 392 F.2d 172.) ⁶

As the court pointed out in People v. Haston, supra, the statements with reference to the charge pending when the statements were obtained amounted to a confession, but as used collaterally they take on the nature of an admission only. Hence, we must proceed to determine whether the error was prejudicial and harmful in light of Chapman v. State of California (1967), supra, 386 U.S. 18, 87 S.Ct. 824, standards.

As the People are 'the beneficiary of a constitutional error,' it is incumbent upon the attorney general 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Chapman v. State of California (1967), supra, at p. 24, 87 S.Ct. at p. 828.)

The testimony of Sergeant Loeber as to defendant's scabs and scar tissues caused by narcotics' injections and her admissions as to the use of heroin were pivotal in resolving the direct conflict in the testimony of the People's percipient witness and that of the defendant and her corroboration witnesses. (Cf. Stoner v. State of California (1964) 376 U.S. 483, 490, fn. 8, 84 S.Ct. 889, 11 L.Ed.2d 856.)

The prosecution's percipient witness, Charlie Clayborn, testified as follows: On November 24, 1965, he was an undercover police officer of the City of Los Angeles assigned to 'Central Narcotics.' At approximately 10:15 a.m. on that date, he went to 650 East Flower Street in Venice, California, accompanied by a Charles Robinson. Robinson was an undercover contact who had a state prison record for a narcotics conviction. Upon arrival at 650 East Flower Street, Robinson knocked on the door. Defendant opened it. Robinson asked if Sam was at home. Defendant replied, 'Yes.'

Robinson and Officer Clayborn entered the house and then proceeded toward the back. Defendant asked, 'Where are you all going?' Robinson replied, 'To see Sam.' Defendant then took a ten dollar bill, which Robinson was holding folded between his fingers, and went to the door to the left of the living room and then went to another door which she opened. She placed her arm through that doorway. She then returned and handed...