People v. Thomas

• Decision Date: 15 July 1977
• Docket Number: Cr. 19476
• Citation: 19 Cal.3d 630,566 P.2d 228,139 Cal.Rptr. 594
• Court: California Supreme Court
• Parties: , 566 P.2d 228 The PEOPLE, Plaintiff and Respondent, v. L. C. THOMAS, Defendant and Appellant.

Page 594

139 Cal.Rptr. 594

19 Cal.3d 630, 566 P.2d 228

The PEOPLE, Plaintiff and Respondent, v. L. C. THOMAS, Defendant and Appellant.

Cr. 19476.

Supreme Court of California, In Bank.

July 15, 1977.

As Modified July 25, 1977.

Wilbur F. Littlefield and Richard S. Buckley, Public Defenders, John J. Gibbons, Alan H. Simon, Michael Tautfest and Laurence M. Sarnoff, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Jack T. Kerry and Abram Weisbrot, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Two years ago we held that a person whom the state seeks to commit to a mental hospital as a 'mentally disordered sex offender' (Welf. & Inst.Code, § 6300 et seq.) is entitled on several state and federal constitutional grounds to the safeguards of proof beyond a reasonable doubt (People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352) and a unanimous verdict (People v. Feagley (1975) 14 Cal.3d 338, 349--358, 121 Cal.Rptr. 509, 535 P.2d 373). In each case we expressly left open the question whether a person subjected to involuntary commitment proceedings as an alleged narcotics addict (Welf. & Inst.Code, § 3000 et seq.) is entitled to the same safeguards. We are now called upon to decide that question. After a careful review of the nature and consequences of narcotics addict commitment proceedings in California, we conclude they should likewise be governed by the Burnick-Feagley standards.

Defendant Thomas was convicted of second degree burglary in 1971. The proceedings were apparently not final when, on November 14, 1974, he was arrested and returned to custody on suspicion of being under the influence of heroin. The court adjourned the prior proceedings and ordered that a petition be filed to determine whether defendant was a narcotics addict within the meaning of Welfare and Institutions Code section 3051. ¹ Two doctors were appointed to examine him, and testified at the ensuing hearing. (§ 3106.) The court found that defendant was a narcotics addict or in imminent danger of becoming addicted, and committed him to the custody of the Director of Corrections for confinement in the California Rehabilitation Center (§ 3300 et seq.) for the term prescribed by law (§§ 3200, 3201).

Defendant made a timely demand for a jury trial (§ 3051), and on his motion two additional doctors were appointed and examined him. In the course of the trial defendant twice requested instructions requiring proof of addiction beyond a reasonable doubt and a unanimous verdict. The court refused the requests, and instructed the jury instead that they could find addiction by a preponderance of the evidence and a three-fourths verdict. (§ 3108.) The jury found defendant to be in imminent danger of becoming an addict, and a poll revealed the vote was 11 to 1. The court then made a second order of commitment identical to the first, and defendant appeals therefrom. (Pen.Code, § 1237, subd. 1.)

I

The importance of adequate procedural safeguards against an erroneous verdict in narcotics addict commitment proceedings is underscored by the close balance of the evidence in the case before us.

Defendant freely admitted that he had begun experimenting with heroin in 1971, and became addicted thereto by 1972. But he testified that under strong family pressure, including his wife's temporary separation from him, he reduced and finally discontinued his use of heroin in 1973, having his last 'fix' in December of that year. Since that date his sole experiences with injections occurred in May 1974, when he twice took cocaine, and in October 1974 when he took codeine for pain following extraction of all his upper teeth.

Defendant gave the same history to each of the four doctors who examined him. They based their opinions, however, primarily on the physical appearance of certain 'tracks' they observed on defendant's arms at the time of the examination. Such tracks typically appear as brownish discolorations of the skin following the lines of veins which have been the site of repeated and localized self-administered injections. They are commonly relied on as evidence of heroin addiction, but their value in that respect is subject to two important limitations.

First, because the discoloration tends to be permanent it gives no clue to the age of the track. Only when certain additional symptoms are present can an inference be drawn that there have recently been multiple injections into the vein: the symptoms include scab formation and a temporary inflammation or swelling. But such features disappear in an average of one to two months following discontinuance of the injections, after which it is again impossible to determine when the vein was last used for this purpose. Moreover, even when some swelling is present it must be carefully distinguished from a long-term hardening of such veins caused by permanent scar tissue from previous injections. In short, unless there is the appropriate kind and degree of traumatic swelling, the presence of tracks is inadequate to distinguish between recent and earlier use of the vein.

Secondly, the particular nature of the substance injected cannot be inferred from the appearance of the tracks alone. Repeated and localized self-administered injections of any nonnarcotic substance, or of a narcotic permissibly prescribed, will likewise cause discoloration and swelling of the vein. In the absence of corroborating evidence of heroin use, therefore, the appearance of the tracks is insufficient to support a conclusion that the person is currently a heroin addict. (People v. Bruce (1966) 64 Cal.2d 55, 64--65, 48 Cal.Rptr. 719, 409 P.2d 943.)

With this background we may better appraise the expert testimony in this case. The four doctors called to the stand were all well qualified by training and experience to give their opinions on the significance of the tracks found on defendant's arms. Yet their testimony was sharply divided. The two doctors who testified for the People stated as their opinion that although a majority of the tracks were old, two of them showed sufficient residual swelling to justify the inference that they had been the site of multiple injections some six to eight weeks prior to the examination, i.e., shortly before defendant's arrest. The witnesses then reasoned as follows: it is 'statistically unlikely' that a person who has used heroin for any length of time will switch to a different drug; defendant admittedly had been addicted to heroin in 1971 and 1972; therefore the witnesses made the 'assumption' that the substance he injected shortly before his arrest in November 1974 was heroin. On this and similar reasoning both doctors concluded that defendant was a narcotics addict.

By contrast, the two doctors who testified for the defense were equally firm in their opinion that none of the tracks on defendant's arms was recent. Thus the Los Angeles County Deputy Medical Examiner reviewed in detail the physical appearance of the tracks and concluded 'They are much older than November of 1974.' When shown a photograph of defendant's arm taken at the time of arrest on November 14, the doctor conceded that a number of small puncture wounds visible therein could have occurred within a few weeks prior thereto, but reiterated that it is impossible to tell what substance was injected on that occasion.

The final expert, a forensic psychiatrist with the longest experience among the witnesses in determining narcotic addiction, gave as his opinion that defendant was neither addicted nor in imminent danger of addiction. The doctor found the tracks on defendant's arms to be 'all very old and faded, not consistent with frequently repeated injecting of any drugs in the months recently preceding my exam.' In response to a hypothetical question, he testified that multiple injections of the drug codeine in the period of a week or so could cause temporary swelling of the veins. ²

As noted above, defendant testified that he had given himself a series of codeine injections for pain following extraction of all his upper teeth. He specified that the surgery took place in the Martin Luther King General Hospital in Los Angeles; he first visited the hospital on September 13, 1974, but left without treatment because too many people were waiting to see the doctor; he returned on October 23 for examination, and the surgery was performed on the following day; the codeine was prescribed for him at that time; and he injected it for the ensuing week or 10 days to relieve pain. In rebuttal, the People called a medical records custodian from Martin Luther King General Hospital who testified that every new patient is given a single, permanent identification number, and all treatment he receives thereafter at the hospital is recorded under the same number; according to defendant's medical record he came to the hospital only on September 13, 1974, and left without obtaining treatment; and there is no record of his returning in late October or of receiving dental treatment or a medication prescription. The witness explained that her information was taken directly from the hospital's computer and double-checked by examination of index cards; the computer would have showed any treatment received by defendant subsequent to September 13; and she had never known the computer to make a mistake.

In his closing argument to the jury the prosecutor repeatedly emphasized the apparent impeachment of defendant's testimony in what he termed 'this crucial area.' He stressed that the hospital record put before the jury was defendant's 'only and sole chart' and contained 'every bit of medical information' on this patient; that the chart showed no oral surgery performed on October 24 and no prescription for medication; and hence that 'instead of the defense of (injecting) the codeine Which obviously is a good...