People v. Zavala

Citation239 Cal.App.2d 732,49 Cal.Rptr. 129
Decision Date28 January 1966
Docket NumberCr. 5054
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Arthur ZAVALA, Defendant and Appellant.
CourtCalifornia Court of Appeals

Frank A. Kasama, Fremont (under appointment of the District Court of Appeal), for appellant.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Defendant Arthur Zavala appeals from the judgment of cinviction after he and his codefendant Ruth Ann Jennings were found guilty by the jury of a violation of Health and Safety Code, sections 11500.5 and 11530 (possession of herein for sale and possession of marijuana, respectively).

Appellant's contentions on appeal are threefold: That the trial court erred in allowing testimony and comment on his refusal to take a Nalline test 'when the accused was not advised [of] his constitutional right to refuse and to remain absolutely silent'; that 'remote and highly prejudicial circumstantial testimony was admitted into evidence improperly'; and that 'this case was being tried on the theory that the holding of the Dorado case was no longer law.' Although appellant does not complain that the evidence is insufficient to sustain his conviction, it is necessary to recount it in substance so that the matters complained of can be viewed in proper perspective. This is particularly true insofar as appellant raises the issue of the applicability of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 368 P.2d 361, to the instant case.

On the evening of July 17, 1964 Sergeant Edward Hilliard of the Oakland Police Department, along with other members of the narcotics detail of the Oakland Police Department and several agents from the State Bureau of Narcotic Enforcement, went to the apartment house at 29 Moss Avenue, at which appellant and Miss Jennings were living. Hilliard had in his possession a search warrant bearing defendants' names and instructing Hilliard to search their apartment at this address. Upon obtaining a key from the landlady, Hilliard and the other officers entered apartment No. 1 in which defendants were living. Upon entering the apartment, Hilliard walked into the bedroom where he found defendants standing next to a dresser. Hilliard observed that appellant had a small knife in his hands and was making a chopping motion up and down over what appeared to be some items encased in a piece of kleenex on the top of the dresser. When Hilliard announced himself and his companions as police officers and stated that they has a search warrant to search the premises, appellant 'scooped up' the kleenex from the dresser and ran into the kitchen. Several of the other officers followed appellant into the kitchen and after a brief struggle appellant was subdued and handcuffed. On the kitchen floor Hilliard found a kleenex containing a prophylactic rubber filled with a substance which later proved to be heroin and a coin purse containing two eyedroppers, a copper wire, and a hypodermic needle. In addition, from the kitchen floor and the stove top, respectively, Hilliard recovered a brown crystal-like substance which was found to contain heroin and a second prophylactic rubber partially filled with hereon. Hilliard's search of the apartment and of appellant also produced the following items which were introduced into evidence at the trial: a paper packet containing a substance identified as methedrine which was found in appellant's pocket; a powdery substance containing heroin, two teaspoons, several writing tablets, a square white pad and some rubber bands, which were found on the top of the bedroom dresser; a band-aid can containing two marijuana cigarettes, which was found in the bederoom closet; and a can of milk sugar, which was found in a hall closet. In addition, appellant's trousers were introduced into evidence along with the brownish powdery substance which Hilliard had noticed on the front of them and which was subsequently identified as heroin.

In addition to the foregoing, the record discloses that Hilliard testified that upon taking appellant to the Hall of Justice after his arrest Hilliard observed what appeared to be fresh scars or puncture marks over the veins on the inside of both of appellant's arms, but that appellant denied that these were from the injection of heroin. Testimony was also adduced from Dr. Burton W. Adams, who examined appellant at the Oakland Nalline Clinic on July 18, 1964, that appellant had needle marks on his right inner elbow, and that appellant refused to submit to a Nalline test. As a foundation for Dr. Adams' testimony, it was stipulated by counsel outside the presence of the jury that a Sergeant DuBois had interviewed appellant prior to Dr. Adams' examination and had asked appellant to submit to a Nalline test, and that appellant refused. In addition, it was stipulated that DuBois did not inform appellant of his right to counsel or his right to remain silent prior to requesting that appellant take the Nalline test.

Turning to appellant's first contention that it was error for the trial court to admit into evidence over his objection 1 the testimony of Dr. Adams concerning appellant's refusal to submit to a Nalline test, we note that the claim of error is essentially predicated upon the ground that such refusal was elicited in violation of his right to counsel and to remain silent and therefore evidence thereof was inadmissible. Additionally, however, appellant appears to contend that the admission of such evidence was violative of his privilege against self-incrimination. 2 Before proceeding to discuss these contentions we first deem it proper to consider the nature and purpose of the test in question and the authority for administering it.

Section 11723 of the Health and Safety Code 3 provides as follows: 'In any case in which a person has been arrested for a criminal offense and is suspected of being a narcotic addict, a law enforcement officer having custody of such person may, with the written consent of such peron, request the city or county health officer, or physician appointed by such health officer pursuant to Section 11722, to administer to the arrested person a test to determine, by means of use of a synthetic opiate antinarcotic in action, whether the arrested person is a narcotic addict, and such health officer or physician may administer such test to such arrested person.' In section 11728 the legislative policy underlying the enactment of this statute 4 is stated in terms of statewide concern for the rehabilitation of narcotic addicts and the prevention of the continued addiction to narcotics. To this end it is the declared policy to encourage cities and counties to make use of 'synthetic opiate anti-narcotics in action' to determine narcotic addition or the absence thereof, and to foster research in the means of detecting narcotic addition. (§ 11728.)

'A synthetic opiate anti-narcotic is a drug that has the effect of counterpacting the physiologic actions of morphine, heroin and other morphine drivatives.' (1961 Report to Legislature by Dept. of Justice on 'The Synthetic Opiate Anti-Narcotic Testing Program,' p. 7.) The most widely used of such drugs is that referred to by the trade name 'Nalline,' (Report, supra, p. 7; see 48 Cal.L.Rev. 282.) The use of Nalline to determine whether the person tested is a narcotic user is referred to as the Nalline test and consists of an injection of such drug under the skin and subsequent measurement of the pupils of the eyes, which, in the case of a narcotics user with opiates in his system, will dilate. (Report supra, pp. 9-11; see People v. Williams, 164 Cal.App.2d Supp. 858, 860, 331 P.2d 251; Witkin, Cal. Evidence Supp. (1963) § 326A, p. 129; and see 48 Cal.L.Rev. 282-283.)

In discussing section 11722, which provides for the administering of the subject test to persons placed on probation or parole, Williams noted that the enactment of this statute 'must be accepted as a legislative mandate that the Nalline test has probative value.' (P. 862, 331 P.2d p. 254.) It was accordingly held in Williams, where the defendants were charged with being under the influence of or addicted to the use of narcotics (§ 11721 as it then provided), that the results of such tests, voluntarily taken by the defendants, were admissible in evidence. In People v. Hightower, 189 Cal.App.2d 309, 11 Cal.,Rptr. 198, a case involving a prosecution for illegal possession of narcotics, the results of the Nalline test given with the defendant's oral and written consent were held admissible in evidence. Similarly, in PEOPLE V. DAVIS, 231 CAL.APP.2D 180, 41 CAL.RPTR. 617,5 where the Nalline test was given to the defendant several hours after his arrest, the appellate court, relying upon Williams, held that the results of the Nalline test were admissible in a prosecution for possession of heroin (§ 11500) for the purpose of showing the defendant's knowledge of the presence of the narcotic in a room he occupied with another person, and his knowledge that the substance was a narcotic. The opinion in Davis is silent as to whether consent was given for the test. It appears, however, that there the objection to the admission into evidence of the results of the test was not predicated upon the defendant's lack of consent but upon the ground of irrelevancy.

We are unaware of any reported case dealing with the question of the admissibility of the results of a Nalline test given without the defendant's consent. However, the receiving in evidence of the results of a blood test, a saliva test, and a breath analysis test given in a medically approved manner without the consent of the suspect or accused has been held not to violate the defendant's rights under the federal and State constitutions. (Blood tests: Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1...

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