People v. Bruce

peared that there was a disagreement between the first two physicians appointed by the court to examine defendant. One of the physicians first appointed indicated to the court that additional evidence was required before he could arrive at a diagnosis. The second indicated that he had concluded from his physical examination of the defendant that he was a narcotic addict. In view of this disagreement the court correctly followed the procedure often taken in similar situations involving allegedly mentally ill persons, the appointment of one or more additional doctors to examine the person. Here the court appointed two medical examiners long experienced in examining persons claimed to be addicted to narcotics. They examined the defendant and subsequently gave their testimony in court. This was entirely proper since the applicable statute requires the court to appoint at least two medical examiners. (Welf. & Inst. Code, former § 5053.)

Both pairs of examiners duly filed their certificates with the court. Defendant complains, however, that the certificate of the first two doctors was incomplete and did not substantiate the order of commitment and that the court referred to this particular certificate in its order of commitment. This is factually correct; however, the clerk’s transcript indicates that the certificates of all four medical examiners appointed by the court were in fact filed as a part of the proceedings on June 20, 1963, and, undoubtedly, the reference in the formal order signed by the judge only to the certificate of the first two doctors "was a clerical error which is subject to correction by a nunc pro tunc order. At the conclusion of the hearing, following argument, the court indicated that it was relying upon the testimony of three of the four doctors appointed by the court that the defendant “is a narcotic drug addict at this time and that he is in need of rehabilitation treatment.”

The defendant charges that the medical witnesses should not have been permitted to review the report of the probation officer which was in the file, asserting that such report includes hearsay evidence and that the effect was to deny the defendant a fair trial. This objection has no merit because it ignores the nature of these proceedings. The law clearly contemplates that the medical examiners shall have the benefit of all relevant information to better enable them to make their diagnoses, and, as pointed out, the form of the certificate required of the doctors specifically includes “pertinent case history.” In the case of a mentally ill person such

case history is usually compiled by a psychiatric social worker, probation officer or investigator, and is afforded to both the court and the medical examiners for their information. In the case of an alleged narcotic addict, or one in imminent danger of becoming addicted to narcotic drugs, the report of the probation officer, likewise, can be very helpful in giving the doctors and the court the history and background of the individual insofar as its bears on the question of his use of narcotics.

It is also significant that the law requires, with respect to the determination of the question of narcotic addiction, as well as that of mental illness, that the medical examiners be present in the courtroom and listen to the testimony of all witnesses to assist them in arriving at their diagnoses.

We conclude therefore that there are no valid questions of procedure under which the order of commitment may be successfully attacked in this case, and that under such circumstances the normal procedure would be to affirm the order and to advise the defendant that as to the question of insufficiency of the evidence, as pointed out in In re Trummer, supra, 60 Cal.2d 658 , 665, the remedy of a person who believes he has been illegally committed under the provisions of the narcotic addiction statutes is to demand trial by jury or by the court “on the issue of his narcotic addiction at the time of his commitment.” (Italics added.)

Here, at the summary hearing defendant ’s counsel laid great emphasis upon the fact that none of the tests conducted by any of the eight doctors who testified were positive, i.e., showed the presence of narcotics in the defendant’s system when examined or indicated that he was then undergoing or had at any time undergone the withdrawal symptoms which are indicative of addiction. However, such tests made on or about the time of commitment are not compelling proof of non-addiction. In People v. Victor, 62 Cal.2d 280 , 302, 304 [ 42 Cal.Rptr. 199 , 398 P.2d 391 ], the court recognized that “addiction is more a process than an event’’ and that although no single definition of “addiction” may be satisfactory for all purposes there is general agreement that abuse of an addictive depressant drug, such as heroin, “will tend to produce in the user the three characteristic mental and physical responses of the addiction process: i.e., emotional dependence, tolerance, and physical dependence.”

An addict who has been in custody for a period of weeks or months, and who has not had access to narcotics for that

period, may be nonetheless a narcotic addict within the meaning of the narcotic laws even though an examination at the time of commitment may show no signs of the withdrawal illness which occurs upon abrupt termination of drug administration. Likewise, laboratory tests, such as by the administration of Nalline, or urinalysis, may be entirely negative and are not of compelling significance.

Similarly, a person who is permitted to remain on bail pending criminal proceedings against him may be able to abstain from narcotics for a limited period of time under the compulsion of being under surveillance or under threat of confinement and yet be properly classified as an addicted person, or one in imminent danger of becoming addicted to narcotics, if his “pertinent case history” shows repeated use of narcotics to the extent that he has failed to resolve his problems by socially accepted methods, that he is emotionally or physically dependent upon their use, and that he has therefore become addicted or that a total addiction is just a matter of time. “When that stage is reached, the state has the right and duty to intervene for the protection of the individual in question and of society at large.” (People v. Victor, supra, 62 Cal.2d 280 , 305.)

Normally, as indicated above, a defendant who feels that he has been improperly committed for lack of evidence of his addiction should seek the remedy provided for in the statute, namely, to demand a trial de novo by jury or by court. However, in this case, in view of the extensive hearing accorded the defendant and the great amount of medical testimony (eight doctors, four for the state and four for defendant, were called and testified), justice would not be served by returning the case for a further trial unless that appeared necessary.

With this in mind the court has reviewed the evidence and has reached the conclusion that it is legally insufficient to substantiate an order of commitment and that therefore no purpose would be served in ordering a further hearing. It should be noted that the hearing before the trial court in this matter was conducted prior to and without the benefit of a number of decisions of this court in which rules have been laid down governing the determination of addiction. (People v. O’Neil, 62 Cal.2d 748 [ 44 Cal.Rptr. 320 , 401 P.2d 928 ]; People v. Victor, supra, 62 Cal.2d 280 ; In re Trummer, supra, 60 Cal.2d 658 ; In re Raner, 59 Cal.2d 635 [ 30 Cal.Rptr. 814 , 381 P.2d 638 ].)

From the point of view of the state, the medical evidence adduced indicated that there were found on the defendant’s hands and arms linear discolorations which were similar to tracks which are made on persons who use narcotics. There were numerous marks which were bluish or brownish and widened over a portion of the veins. The latter hardened when palpated. It was almost entirely upon the nature of these marks that three of the state’s four medical examiners concluded the defendant was a narcotic addict. A summary of the testimony of these doctors indicates that although their knowledge that the defendant had been convicted of the possession of heroin and had associated with known narcotic users may have had some slight bearing upon the question, their conclusions that he was an addict were based almost entirely upon their physical examination of his arms.

The defendant’s personal physician stated that he had given his patient prescriptions for the extensive use of Methedrine, a drug which stimulates the central nervous system, to overcome a lethargic condition of which defendant complained which made it difficult for him to stay awake and to perform in his vocation as a nightclub entertainer. Because the oral administering of Methedrine had proved ineffective, this doctor advised defendant to inject the drug intravenously which he had been doing for a considerable period of time. He stated that in his opinion defendant was not an addict and was not in imminent danger of becoming addicted.

One of the doctors called by the defense testified that he could not “state conclusively” that the defendant was a narcotic addict. He gave his opinion that he was not in imminent danger of addiction, however, and stated that the injection of a nonnarcotic substance could produce conditions similar to those produced by an injection of a narcotic, and in the absence of other information he could not distinguish between the two types of marks which such injections could make on defendant’s arms. A defense doctor who had examined defendant and given him a series of Nalline tests gave his opinion that he was not an addict.

Dr. Joel Fort, who volunteered his services to assist the defendant and who is an acknowledged expert in this field, likewise testified that in his opinion defendant was not an addict nor was he in imminent danger of becoming one, and further stated that one cannot distinguish between a dis

coloration or mark caused by the intravenous injection of heroin and one caused by the intravenous injection of a non-narcotic substance such as Methedrine. He stated that self-administered injections of narcotics usually produce abscesses but he found none on the defendant’s arms. He found no physical evidence that defendant had ever taken a narcotic, nor evidence of mental or emotional disorder to indicate he was dependent upon narcotics.

The defendant’s personal physician testified that in the four years he had treated him he never noticed in defendant any evidence of narcotic use or any withdrawal symptoms; that defendant had been hospitalized in 1961 and had been given between 600 and 1,000 injections of antibiotics and other medicines.

The record indicates a direct conflict in the medical testimony with respect to whether or not a doctor can distinguish, solely by the examination of a person’s arms, whether an injection or series of injections was the result of the self-administration of a narcotic drug or of a nonnarcotic substance, such as Methedrine. Although in the normal situation the court would deem itself bound by the resolution of this conflict as made by the trial judge, under the circumstances of this case the evidence of addiction is otherwise insufficient to support the order of commitment. Aside from any inference which may arise from the conviction of defendant of the possession of heroin, the evidence of his association with drug addicts and the medical opinions based upon examination of the marks upon his arms, there is no evidence indicating that prior to the arrest of the defendant in the criminal case he engaged in any use of heroin, much less of any repeated use of narcotics; that he was emotionally or physically dependent upon narcotics prior to or at or about the time of his arrest on the criminal charge; that he had ever experienced the abstinence syndrome (withdrawal illness). Although evidence of having experienced the abstinence syndrome immediately prior to arrest or commitment, or subsequently thereto, constitutes one of the proofs of addiction (People v. Victor, supra, 62 Cal.2d 280 ), it is not essential to a finding, for purposes of commitment pursuant to section 6451 of the Penal Code, that a person is either an addict or in imminent danger of becoming addicted if other evidence is sufficient to show repeated use of heroin to the extent that the person has failed to solve his problems by socially accepted methods and that he is emotionally or physically dependent upon nar

cotics and is, therefore, in the opinion of qualified examiners either addicted thereto or in imminent danger of becoming so addicted. Under the circumstances of this case the record is insufficient to support the conclusion of the three medical examiners or the committing court that at the time of defendant’s arrest on the criminal charge or of his commitment to the rehabilitation center he was either addicted or in imminent danger of becoming addicted to narcotic drugs.

For these reasons the order of commitment of defendant as a narcotic addict is reversed and the defendant is ordered returned to the department of the superior court, which directed the filing of the petition, for such further proceedings on the criminal charges as the judge of such department deems warranted.

Traynor, C. J., McComb, J., Peters, J., Tobriner, J., Peek, J., and White, J.,* concurred.