THE PEOPLE, Plaintiff and Respondent, v. FRANK CULVER, Defendant and Appellant, 10 Cal. 3d 542

Opinion TOBRINER, J. In 1963 defendant, Frank Culver, was convicted of attempted murder. Defendant filed a timely notice of appeal, but thereafter failed to file an opening brief and the appeal was subsequently dismissed. On February 26, 1971, the dismissal was set aside, the remittitur recalled and the appeal reinstated. This case is thus before us on direct appeal from defendant’s 1963 conviction. The defendant presents two contentions on appeal: (1) that confessions made by him to the police were involuntary under the rationale of Townsend v.

Sain (1963) 372 U.S. 293 [9 L.Ed.2d 770, 83 S.Ct. 745] and (2) that the evidence presented at trial was insufficient as a matter of law to show that his wife was alive when he attempted to kill her. 1. The facts. At 9:45 a.m. on February 28, 1962, a police officer arrived at Frank Culver’s residence in Oakland. He observed a garden hose attached to an outside gas line; the hose extended into defendant’s bedroom window. He and another officer succeeded in pulling the hose out of the window.

The officer then knocked at the front door of the residence; a male voice responded, “Wait a minute, while I get some clothes on.” Culver, dressed in pajamas which were covered with blood in the chest area, opened the door. Laura Culver, defendant’s wife, was found in the bedroom, the room into which the hose had been placed. She was lying on the bed; her body was still warm. Emergency efforts to revive her failed. Frank Culver was placed under arrest and then taken to the county hospital to be treated for stomach wounds that he had inflicted upon himself just prior to the entry of the police officers.

He was admitted to the hospital at 10:10 a.m. Commencing at 10:30 a.m., he gave a statement to police investigators. He followed with a second statement at 2:40 p.m. the same day. Later that afternoon, Culver underwent surgery for his abdominal wounds. In his first statement, defendant admitted attaching the hose to the gas meter and placing it through the window at approximately 12 o’clock the previous night; further, he stated that although he believed his wife to be despondent and desirous of death, he had not discussed his idea of joint suicide with her.

During his second statement, the defendant indicated the location in the house where he placed the wrench used to connect the hosing to the gas line and stated that “I just killed my wife” and was “Guilty as they come.” Additionally he reiterated that his intent had been to take both his own and his wife’s lives. An autopsy performed on defendant’s wife determined the cause of death to be “respiratory failure and hypoxia, probably due to acute alcoholism.” At trial, however, the coroner testified that his findings were consistent with death from inhalation of natural gas.

Blood atmosphere tests performed on the victim disclosed the presence of natural gas in her bloodstream. 2. The record does not establish that defendant’s confessions were obtained while defendant was under the influence of drugs. The defendant contends that the two confessions elicited from him by the police on February 28, 1963, were involuntary as they were the products of scopolamine and Demerol administered to him by hospital personnel. Clearly a confession that is adduced from an individual whose “will was overborne” (Reck v.

Pate (1961) 367 U.S. 433, 440 [6 L.Ed.2d 948, 953, 81 S.Ct. 953]) or is not “the product of a rational intellect and a free will” (Blackburn v. Alabama (1960) 361 U.S. 199, 208 [4 L.Ed.2d 242, 249, 80 S.Ct. 274]) should not be admitted into evidence because it is involuntary; the United States Supreme Court has indicated that confessions elicited by the use of hyoscine and phenobarbital are not the products of a rational intellect or free will. (Townsend v. Sain (1963) 372 U.S. 293 [9 L.Ed.2d 770, 83 S.Ct. 745]; see.

In re Cameron (1968) 68 Cal.2d 487, 498 [67 Cal.Rptr. 529, 439 P.2d 633].) Thus we must examine the record before us to determine if, in fact, Culver’s confessions were the involuntary product of drug ingestion, however beneficially administered. Although the hospital’s medical records were entered into evidence at trial and although Culver’s counsel objected to the admission of defendant’s confessions, counsel did not argue the question of the effect of the scopolamine and Demerol injections. No medical experts were called to testify.

This does not, however, bar us from an independent examination of the medical records and a reevaluation of the question of voluntariness. (People v. Berve (1958) 51 Cal.2d 286, 290-291 [332 P.2d 97]; People v. Trout (1960) 54 Cal.2d 576, 583 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418].) An examination of the hospital records does not establish the accuracy of Culver’s contention that his confessions were obtained while he was under the effects of the drugs in question.

Although these records demon-state that both scopolamine and Demerol were administered to defendant on the day in question, they are ambiguous as to the hour of their administration. A well settled principle of appellate review dictates that all intendments be indulged to support the trial court findings and that the reviewing court consider the evidence in a light most favorable to the respondent. (People v.

Sweeney (1960) 55 Cal.2d 27, 33 [9 Cal.Rptr. 793, 357 P.2d 1049].) When, as here, the record is ambiguous as to the hour when the medications were administered, we must uphold the trial court’s determination of the voluntariness. The trial court, after initially admitting the confessions, properly instructed the jury that under California law in effect at that time, the jury was the final arbiter of the issue of voluntariness. In light of the record before us we must conclude that defendant has not established as a matter of law that his confessions were involuntary. 3.

Substantial evidence supports the determination that Mrs. Culver was alive when defendant placed the hose in the bedroom window. Defendant argues that his actions were not the cause of his wife’s death; that her death resulted'from “acute alcoholism.” In reality, defendant questions whether the prosecution produced sufficient evidence to demonstrate that his wife was alive at the time he placed the hose in the bedroom window.

In reviewing the evidence on appeal, the applicable test is not whether guilt has been proven beyond a reasonable doubt, but rather whether substantial evidence supports the conclusion of the trier of fact. (People v. Daugherty (1953) 40 Cal.2d 876, 885 [256 P.2d 911]; People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321].) The reviewing court does not perform the function of reweighing the evidence; instead, the court must draw all inferences in support of the verdict that can reasonably be deduced from the evidence. (People v.

Newland (1940) 15 Cal.2d 678, 681 [104 P.2d 778].) Applying these principles, we find sufficient evidence to support the trier of fact’s implied finding that the victim was alive when defendant positioned the hose. The time of death was established as between 4 a.m. and 6 a.m. on the morning of February 28, 1962. Earlier, at approximately midnight, defendant attached the hose to the gas line, placed it through the window of the bedroom, and turned the nozzle to permit the flow of gas. Blood atmosphere tests performed on Mrs.

Culver’s body disclosed the presence of natural gas in her blood, and testimony indicated that this gas could be absorbed only if she were alive. The coroner testified that his findings concerning the cause of death, i.e., “respiratory failure and hypoxia, probably due to acute alcoholism,” would be consistent with death from inhalation of natural gas. Accordingly, the evidence is sufficient to support the verdict. The judgment is affirmed. Wright, C. J., McComb, J., Burke, J., Sullivan, J., and Clark, J., concurred.

Culver was charged twice with murder and brought before a magistrate, and the magistrate twice refused to find probable cause. A new charge of attempted murder was brought and after a third preliminary examination, he was held to answer. On December 11, 1970, the United States District Court for the Northern District of California (Weigel, Judge) ordered Culver’s appeal reinstated on the ground that his counsel was ineffective under the standards of Gairson v. Cupp (9th Cir. 1969) 415 F.2d 352. Hyoscine and scopolamine are equivalent drugs. (Blakiston’s New Gould Medical Dict. (1951) p. 481; see Townsend v.

Sain (1963) 372 U.S. 293, 298 [9 L.Ed.2d 770, 777, 83 S.Ct. 745].) In Townsend the court found that the combined dosage by injection of Vs -grain phenobarbital and 1/230-grain of hyoscine given to petitioner to alleviate drug related withdrawal symptoms rendered Townsend’s statements constitutionally inadmissible.

The court expressly refused to make a finding as to the effect of the specific dosage administered to Townsend (372 U.S. at p. 309, fn. 5 [9 L.Ed.2d at p. 783].) It should be noted additionally that in Townsend, unlike the instant case, the respondent specifically admitted that Townsend’s confession occurred immediately after the injection of drugs. Further, in Townsend considerable expert testimony was elicited on both sides concerning the probable effect of the drugs which were administered.

Because of the reinstatement of defendant’s original appeal in 1970 this case did not technically reach a final judgment prior to the decisions of People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] and Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], but under People v. Rivers (1967) 66 Cal.2d 1000, 1005 [59 Cal.Rptr. 851, 429 P.2d 171] it is clear that defendant may not claim the protection of those authorities. (See, e.g., People v.

West (1967) 253 Cal.App.2d 348, 356-357 [61 Cal.Rptr. 216].) Instead, the governing standard is simply whether the prosecution sustained its burden of establishing that the statements were voluntary. (People v. Serve (1958) 51 Cal.2d 286, 291 [332 P.2d 97].) The records specifically state that 75 milligrams of Demerol and 1/150 grain of scopolamine were administered on February 28 at an “hour not shown.” In fact, any inference to be drawn from the handwritten notations indicates that the medication was probably administered after the confessions but prior to the late-afternoon surgery.

The relevant records indicate two sets of doctors’ directives, each in a different handwriting and signed by a different doctor. The nurse’s notations opposite the first set indicate that such directions were carried out between 10:10 a.m. and 3:10 p.m. The order to administer the drugs in question, however, appears in the second set of directions, thereby suggesting that such order was carried out after the confessions were elicited. The dissent raises the suggestion that the scopolamine was administered to defendant on behalf of the police for the purpose of inducing defendant’s confessions.

This is the first time such a suggestion has been made in the entire lengthy history of these proceedings; significantly, defendant has never argued, and does not now contend, that the drug was prescribed or administered for such a purpose. The dissent apparently bases its conjecture in this regard on an assumption that the only medical reason for prescribing scopolamine to a patient is to take advantage of its “truth serum” qualities.

Yet medical authority does not support this bare assertion; a leading medical dictionary states that the drug scopolamine “is used mainly as a sedative in psychiatry and surgery.” (Italics added.) (Blakiston’s New Gould Medical Diet. (1951) p. 915.) The medical authorities relied upon in the dissent do not dispute this usage. Thus, a reasonable inference from the present record, in support of the judgment, is that the drug was administered to defendant as a sedative shortly before his late afternoon surgery and several hours after both of his confessions.

There is no support in the record for the dissent’s assertion that “scopolamine and Demerol had been promptly ordered by the doctor” {infra, p. 551) upon defendant’s admission to the hospital. The dissent also implies that even if scopolamine had not been administered to defendant prior to his confessions, defendant’s physical condition may in itself have been so serious as to render the confessions involuntary.

Defendant, however, presented absolutely no evidence, medical or otherwise, as to his physical condition at the time of the interrogations: the only relevant evidence in the record is the testimony of the interrogating police officer, who stated that defendant was coherent, appeared to understand all questions, and gave responsive answers throughout the questioning period. The officer also testified that several medical personnel, including a doctor, were present throughout the entire interrogation; defendant has not presented affidavits from any of these individuals contradicting the police officer’s testimony.

The trial judge who heard the testimony determined that defendant’s confessions were voluntary, and on the present record we cannot properly overturn that decision. Submission of the voluntariness issue to the jury, after an initial determination of this issue by the trial court, constituted the proper procedure at the time of trial. (See People v. Gonzales (1944) 24 Cal.2d 870, 876-877 [151 P.2d 251]; People v.

Lindsey (1972) 27 Cal.App.3d 622, 630-631 [103 Cal.Rptr. 755].) With the adoption of the Evidence Code, effective January 1, 1967, California now gives the trial judge the final responsibility for determining the admissibility of confessions, and the court is required to determine the admissibility of a confession outside the presence of the jury if the party so requests. (Evid. Code, §§ 400, 402, subd. (b), 405; People v. Lindsey (1972) 27 Cal.App.3d 622, 631 [103 Cal.Rptr. 755].)