People v. Saldivar, Cr. 5414

• Decision Date: 23 March 1967
• Docket Number: Cr. 5414
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Ruben SALDIVAR, Defendant and Appellant.

Page 731

57 Cal.Rptr. 731

249 Cal.App.2d 670

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Ruben SALDIVAR, Defendant and Appellant.

Cr. 5414.

Court of Appeal, First District, Division 2, California.

March 23, 1967.

Philip A. Oberg, Salinas, for appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant was convicted of possession of heroin (Health & Saf. Code, § 11500). On appeal, ¹ he contends that the analysis of a urine specimen obtained from him by his parole officer was erroneously admitted into evidence and that the testimony of the parole officer constituted an improper allusion to an admitted prior offense (Pen.Code, § 1025).

There is no dispute as to the sufficiency of the evidence. About 6:45 p.m. on July 2, 1965, Officers Weir and Larkin of the Salinas Police Department were on patrol duty and heard firecrackers exploding. They proceeded to investigate and as they were parking their police vehicle at 108 Carneros Street, saw three men standing next to two cars parked about ninety feet away. The weather was clear and the sun was still shining. One of the officers recognized defendant and observed him reach into his shirt pocket, remove a shiny object and place it by the left front wheel of the 1955 Mercury. Defendant then kicked at the general area behind the left front tire and walked over and sat down on the motorcycle parked nearby. The officers immediately retrieved a shiny cellophane packet containing seven bindles of heroin from under the Mercury's left front wheel. They arrested defendant and one of his companions. Defendant was informed of his right to remain silent and his right to an attorney. That evening at the police station, needle marks were noted on one of defendant's elbows. Defendant, on request, gave his parole officer a urine specimen. The chemical analysis of this specimen, indicating the presence of morphine, was admitted into evidence at the trial over defendant's objection.

On the day after arrest, defendant was questioned, after having been again informed of his rights. He denied any knowledge of the heroin found under the car but stated that he was a heroin user. At the trial, he admitted he had given himself an injection of heroin half an hour before the police arrived but claimed that the objects he threw between the cars were firecrackers and that a companion had thrown another object under the Mercury. This explanation was corroborated by two defense witnesses.

Defendant first argues that he lacked the freedom of mind to voluntarily respond to his own parole officer in giving the urine specimen and that the admission of the urinalysis into evidence violated his constitutional privilege against self-incrimination. Although the question is one of first impression in California, it was held in United States v. Nesmith, D.C., 121 F.Supp. 758, that there was no violation of the privilege against self-incrimination where a Police officer requested and was freely given a urine specimen, the chemical analysis of which was subsequently admitted into evidence over defendant's objection.

It may be contended that a parolee would normally feel more reluctant to refuse the request of his own parole officer than that of an ordinary police officer. However, the United States Supreme Court recently held in Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, that the privilege against self-incrimination is not violated even where the suspect expressed an unwillingness to submit to a blood test. In that case, after defendant's arrest for drunken driving, he was taken to a hospital to receive treatment for injuries suffered in an automobile accident. Despite his refusal, on advice of counsel a blood sample was withdrawn by a physician at the direction of the police officer. The analysis indicating intoxication was admitted in evidence at the trial, over defendant's objections.

In Schmerber, the court relied on the many cases holding that the privilege against self-incrimination applies to evidence of 'communications or testimony' but not to 'real or physical evidence,' derived from the accused. The court stated at page 765, 86 S.Ct. at page 1832: 'Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.' The California Supreme Court has recently held that voice identification, breath tests and handwriting exemplars (People v. Graves, 64 Cal.2d...