THE PEOPLE, Plаintiff and Respondent, v. ARTHUR ZAVALA, Defendant and Appellant.
Crim. No. 5054
First Dist., Div. One.
Jan. 28, 1966.
February 18, 1966
The judgment is affirmed.
Sullivan, P. J., and Molinari, J., concurred.
A petition for a rehearing was denied February 18, 1966, and appellant‘s petition for a hearing by the Supreme Court was denied March 22, 1966.
Thomas C. Lynch, Attorney General, Derald E. Granberg and Horace Wheatley, Deputy Attorneys General, for Plaintiff and Respondent.
MOLINARI, J.—Defendant Arthur Zavala appeals from the judgment of conviction after he and his codefendant Ruth Ann Jennings were found guilty by the jury of a violation of
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
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 had 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 heroin. 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 bedroom closet; and a can of milk sugar, which
In addition to the foregoing, the record discloses that Hilliard testified that upon taking appellant to the Hall of Justice aftеr 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 objection1 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 Code3 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 person, request the city or county health officer, or physician appointed by such health
“A synthetic opiate anti-narcotic is a drug that has the effect of counteracting the physiologic actions of morphine, heroin and other morphine derivatives.” (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 usеr 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 (1963 Supp.) § 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.) 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
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 apрroved 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 L.Ed. 2d 448]; People v. Haeussler, 41 Cal.2d 252, 257-260 [260 P.2d 8]; People v. Duroncelay, 48 Cal.2d 766, 770 [312 P.2d 690]; People v. Kemp, 55 Cal.2d 458, 478 [11 Cal. Rptr. 361, 359 P.2d 913]; People v. Knox, 178 Cal.App.2d 502, 513 [3 Cal. Rptr. 70]; People v. Pack, 199 Cal.App.2d 857, 863 [19 Cal. Rptr. 186]; People v. Huber, 232 Cal.App.2d 663, 670-672 [43 Cal.Rptr. 65]; saliva test: People v. Kemp, supra, p. 478; breath analysis test: People v. Conterno, 170 Cal.App.2d Supp. 817, 826-827 [339 P.2d 968].) Subjecting a defendant to such tests has been held not to be violative of the defendant‘s privilege against self-incrimination (see People v. Haeussler, supra, p. 257; Vasquez v. Superior Court, 199 Cal.App.2d 61, 64 [18 Cal. Rptr. 140]; People v. Pack, supra, p. 863; People v. Huber, supra, p. 672), because such privilege extends only to testimonial compulsion (People v. Haeussler, supra, p. 257; People v. Trujillo, 32 Cal.2d 105, 112 [194 P.2d 681]; People v. Duroncelay, supra, p. 770; and see People v. Lopez, 60 Cal.2d 223, 244 [32 Cal.Rptr. 424, 384 P.2d 16]); nor violative of the constitutional provisions against unreasonable search (People v. Duroncelay, supra, pp. 771-772; People v. Pack, supra, pp. 863-864), as long as the tests are not administered in a fashion so as to
Upon the analogy of these cases, therefore, we conclude that a person has no constitutional right to refuse to take a Nalline test provided it is administered in a medically approved manner and not in a fashion that shocks the conscience or offends one‘s sense of justice.
Although we have concluded that a suspect or an accused may not refuse to take a Nalline test on constitutional grounds, provided it is administered in a manner which does not offend due process, he may refuse to take the test in California by reason of the enactment of section 11723, which requires written consent for the administration of the Nalline test. It should be noted, however, that section 11723 comes into play only where a person has been arrested for a criminal offense and is suspected of being a narcotic addict. Under such circumstances, section 11723 provides that a Nalline test can be administered to the arrested person with his written consent. Thus, it appears from the language of this statute that, except where the test is imposed as a condition of probation or the parole of a narcotic user as provided in section 11722, the Legislature intended to provide the аrrested person with the “right to refuse” to take the Nalline test. Accordingly, since such right would be rendered valueless if the test could nevertheless be given without the arrested person‘s consent, we conclude that the Legislature has by the enactment of section 11723 made inadmissible in evidence all Nalline tests given in situations encompassed within the statute but without written consent.6
The same conclusion was reached in People v. Dawson, 184 Cal.App.2d Supp. 881 [7 Cal.Rptr. 384], wherein it was held that both the police and the arrested person are entitled to a prompt intoximeter test, and that if the arrested person refuses to take the test the fact of refusal may be proved at the trial and the prosecution is entitled tо an instruction to the jury as to the inference which may be drawn from the refusal. It is apparent, therefore, that McGinnis and Dawson invoked the “admissions by conduct” exception to the hearsay rule that in criminal cases acts of an accused designed to escape arrest, trial or conviction afford an inference of consciousness of guilt and are receivable against him as implied or tacit admissions. (See Witkin, Cal. Evidence (1958) § 240, p. 273, and cases therein cited; McCormick, Evidence (1954) § 248, p. 532; 2 Wigmore, Evidence (1940) §§ 275 et seq., p. 111.) This rule of evidence is firmly established in California. (See People v. Simmons, 28 Cal.2d 699, 712 [172 P.2d 18]; Witkin, supra, §§ 235, 240, pp. 266, 273, and cases therein cited.)7
Since the California courts are committed to the view that the privilege against self-incrimination is limited to testimonial compulsion, and that this privilege therefore does not encompass the use of evidence which is obtained by means of
We are of the opinion, however, that the principle declared in McGinnis and Dawson is not applicable in California to the refusal to take a Nalline test. In those cases the person arrested did not have a “right to refuse” to take the intoximeter test. Since he did not have such right, his refusal to take the test constituted conduct tending to show a consciousness of guilt. In the case of Nalline tests a person is given the “right to refuse” by section 11723. Such right, however, would be rendered valueless if the trier of fact were permitted to draw an inference of guilt from its exercise. We hold, therefore, that in the instant case appellant had a “right to refuse” to take the Nalline test and that it was error for the trial court to admit in evidence the fact of appellant‘s refusal to submit to the test. Since it was error for the court to admit such evidence, the error was compounded when the prosecutor argued the evidentiary effect of such refusal and the trial court instructed the jury that such refusal was a factor it could consider in arriving at its verdict. We are of the opinion, moreover, that appellant did not waive this error by taking the stand and testifying on direct examination that he refused to take the test because it made him ill, since such testimony may have been impelled by the subject evidence.
We now turn to appellant‘s argument that the evidence of his refusal to submit to a Nalline test was violative of his constitutional rights in the light of People v. Dorado, supra, 62 Cal.2d 338. Following the decision of the United States Supreme Court in Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], it was held in Dorado that a defendant‘s extrajudicial statement which was elicited under the following circumstances could not be introduced into evidence: “(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.” (Pp. 353-354.)
The applicability of Dorado to the situation where a defendant signed a written consent to the taking of a blood test to determine the alcoholic content of his blood was discussed in People v. Bellah, 237 Cal.App.2d 122 [46 Cal.Rptr. 598], a case involving a prosecution for drunk driving. It was there held that although the police had not advised the defendant of his right to counsel and to remain silent before taking the blood sample from him, evidence of the results of the test was admissible at the trial. The basis for this holding was that
It is convenient to discuss here appellant‘s claim of error predicated upon the statement of the trial judge that the case was being tried on the theory that the holding of the Dorado case was no longer law.8 The record discloses that this case was tried after the California Supreme Court had granted a rehearing in People v. Dorado (Cal.) 40 Cal.Rptr. 264, 394 P.2d 952, decided in August 1964 and before the final decision in said case was rendered in January 1965. However, at the time of trial in the instant case Escobedo had already been decided by the United States Supreme Court, and since the principle announced in Escobedo is the basis for the Dorado rule, both the trial court and appellant were aware at the time of trial of appellant‘s constitutional right to be advised of his right to counsel and his right to remain silent before any incriminating statement could be elicited from him. As already pointed out, the Dorado rule is not applicable to appellant‘s refusal to take the Nalline test. While appellant makes the broad assertion that it was error for the trial court to makе the subject statement and to assume that the Dorado principle was no longer law, he fails, other than in relation to the Nalline test, to show in what respects the trial court erred or how appellant was otherwise prejudiced by the statement. It is not our duty to search out error. (People v. Lindsay, 227 Cal.App.2d 482, 510 [38 Cal. Rptr. 755]; Kyne v. Eustice, 215 Cal.App.2d 627, 634-635 [30 Cal.Rptr. 391]; Estate of Hoffman, 213 Cal.App.2d 635, 639 [29 Cal.Rptr. 60].)
Assuming that appellant has reference to two statements—one from appellant and one from the codefendant, Miss Jennings—which the record discloses were elicited by the police without the prior admonition of the right to remain silent and to have counsel, we shall consider these two state-
Apropos the statement made by Miss Jennings, the record discloses that on cross-examination she was confronted with a statement she made to Hilliard following her arrest wherein she stated she did not know what was in the prophylactic rubbers which Hilliard recovered from the apartment or how these rubbers got into the apartment. These statements were used by the prosecution to impeach her testimony at the trial that it was she, and not appellant, who had obtained the heroin and was using it, and that appellant did not know that the substance was in the apartment. An objection to this statement on the basis of Dorado was interposed by counsel for Miss Jennings, but not by counsel for appellant. It was during the colloquy between court and counsel on the propriety of this objection that the trial court made the subject statement to the effect that the case was being tried on the theory that the holding of the Dorado case was no longer law. Under the circumstances, it would appear that any objection on the part of appellant‘s counsel would have been futile and we accordingly conclude that there was no waiver by appellant
The record discloses that Miss Jennings was not advised of her right to counsel or to remain silent prior to the time she made the subject statement. In People v. Green, 236 Cal.App.2d 1 [45 Cal. Rptr. 744], we held that the fact that a statement is used by the prosecution to impeach a defendant rather than as part of its case in chief does not prevent the application of Dorado. Accordingly, Miss Jennings’ extrajudicial statement was admitted into evidence in violation of her rights under Dorado. As to the effect on appellant of this erroneously admitted statement, we note that the jury was admonished and instructed that any statement made by Miss Jennings could only be considered as evidence against her and could not be considered for any purpose against appellant. However, in People v. Aranda, 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265], our Supreme Court held that the admission into evidence of a confession of one defendant obtained in violation of Dorado may result in reversal of the conviction of a codefendant where its admission resulted in prejudice to the latter. The rationale of Aranda is that it may not be assumed that error in admitting a confession implicating a codefendant is rendered harmless to the nonconfessing codefendant by an instruction that the confession should not be considered against the latter.
In the instant case we are not dealing with a confession implicating appellant, but with an extrajudicial statement which, although not directly or expressly implicating him, was susceptible of the inference that the heroin was brought to the apartment by appellant and that, therefore, he had knowing possession of it. While such statement does not have the shattering impact of a confession which inculpates a codefendant, there is a strong indication in Aranda that the principle announced therein is applicable to extrajudicial statements not amounting to confessions, since, in declaring the rules to be applicable in the future in trials of defendants jointly charged with a public offense, the Supreme Court hаs made those rules applicable to all cases involving extrajudicial statements of one defendant that implicate a codefendant. Assuming, however, that it was error to admit Miss Jennings’ extrajudicial statement, its admission was not necessarily prejudicial to appellant; rather, as held in Aranda, we must consider whether the admission of this statement resulted in a miscarriage of justice to appellant.
In summary, we conclude that there is not a reasonable probability that the trier of fact would have reached a result more favorable to appellant had evidence of appellant‘s refusal to take the Nalline test been excluded, nor would a more favorable result have been reached if the trial court had excluded from evidence Miss Jennings’ statement that she had no knowledge of the contents of the prophylactic rubbers or how they got into the apartment. (
The judgment is affirmed.
Sullivan, P. J., concurred.
SIMS, J.—I concur in the affirmance of the judgment, but reserve judgment on the proposition that no inferences may be drawn from an accused‘s failure to give consent to a Nalline test which is offered him under the provisions of