Zavala

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 Health and Safety Code sections 11500.5 and 11530 (possession of heroin 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 *735 the holding of the Dorado ease 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 , 398 P.2d 361 ], to the instant case.

On the evening of July 17, 1964 Sergeant Edward…

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 section 11723 of the Health and Safety Code.

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 Health and Safety Code sections 11500.5 and 11530 (possession of heroin 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 , 398 P.2d 361 ], to the instant case.

On the evening of July 17, 1964 Sergeant…