People v. Benford

• Decision Date: 06 November 1959
• Docket Number: Cr. 6522
• Citation: 53 Cal.2d 1,345 P.2d 928
• Parties: PEOPLE of State of California, Respondent, v. Robert BENEFORD, Appellant.
• Court: California Supreme Court

Page 928

345 P.2d 928

53 Cal.2d 1

PEOPLE of State of California, Respondent, v. Robert BENEFORD, Appellant.

Cr. 6522.

Supreme Court of California, In Bank.

Nov. 6, 1959.

Ellis J. Horvitz, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and John A. Vanderlans, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

An indictment filed April 15, 1958, charged that on December 11, 1957, defendant 'did * * * feloniously sell, furnish and give away * * * marijuana' in violation of section 11500 of the Health and Safety Code and that in 1951 he had suffered a conviction under the same section. After trial the court found defendant guilty as charged and found that the allegation of the 1951 prior conviction was true. Defendant appeals from the ensuing judgment. He urges that as a matter of law uncontradicted testimony of a police officer establishes the defense of entrapment. Also he asks this court to take additional testimony which he says will establish the defense or at least require a new trial. We have concluded that the application to produce evidence should be denied and the judgment of conviction affirmed.

Defendant personally and counsel for both parties waived trial by jury. By stipulation the court considered the transcript of the proceedings before the grand jury, and each side produced additional evidence.

Officer Cornelius Pryor testified before the grand jury that on December 10, 1957, he 'asked (defendant) if we could get together the next day to go out and purchase some marijuana,' and that on the 11th defendant and the officer drove to a housing project, the officer handed defendant $15, defendant left the car, returned in about half an hour, and handed the officer a dollar and a bag which (according to testimony of a chemist) contained 43 grams of marijuana. On cross-examination at the trial Officer Pryor further testified that he met defendant and his wife through one of their neighbors about a month before December 11; that he had visited defendant's apartment and occasionally had beer with him at a tavern; and that $14 was about the usual price, 'maybe a little more,' for 43 grams of marijuana.

The officer further testified as follows concerning his conversations withe defendant as to marijuana:

'Q. Was the subject of marijuana first mentioned by you on the 11th or some time prior to that date? A. No. I mentioned it to him on the 10th, I would say.

'Q. Had you mentioned it to him on a date prior to that? A. That's pretty difficult to answer, but I don't know, maybe I did.

'Q. It would be a fair statement, would it, then, to say that perhaps on two or three occasions prior to the 11th the subject of marijuana was discussed between you and the defendant? A. Yes, I would say so.'

The prosecution placed in evidence a recorded interview of defendant by Sergeant Salagi and Officer Pryor on April 22, 1958. (It should be remembered that the date of the claimed sale was December 11, 1957.) At the beginning of this interview defendant said that he had not previously known that Pryor was a police officer. Asked to 'tell us about this incident that transpired between you,' defendant said, 'I see nothing to tell.' Officer Pryor described the incident of December 11 and defendant first said that he did not remember it, then that he did not get any marijuan, then that he got it at the housing project named by the officer. Defendant refused to identify with particularity the person or place from which he obtained the narcotic. He said that 'whoever I got it from, they didn't give me nothing, * * * it was just a favor that I'd be doing.' Defendant was asked by Officer Pryor, 'This day you sold to the officer, you didn't get anything out of that?' Defendant replied, 'What did you give me, a dollar and a half, or something. * * * I didn't figure I had anything coming. I didn't ask for anything.'

Salient uncontradicted portions of the defense testimony ¹ tend to show that a manifestly reluctant defendant was induced to obtain marijuana for the officer by the latter's repeated requests, gestures of friendship, and appeals to sympathy. In arguing that the defense of entrapment is established as a matter of law, defendant properly refrains from reliance on such testimony, for the trier of fact was not required to give it credence and it is not our function to reappraise its effect. (People v. Merkouris (1959), 52 Cal.2d 672, 344 P.2d 1; People v. De Paula (1954), 43 Cal.2d 643, 649(9), 276 P.2d 600; People v. Carnine (1953), 41 Cal.2d 384, 389(4), 260 P.2d 16; People v. Frankenthal (1949), 91 Cal.App.2d 189, 195(2, 3), 204 P.2d 614.)

In support of defendant's application to produce evidence on appeal, an affidavit of defendant's trial counsel (who does not represent defendant on this appeal) avers that from discussions with Officer Pryor before and after the trial he believes that Officer Pryor would testify, in substance, 'That defendant declined on more than two occasions to furnish or procure marijuana for said Officer Pryor before eventually agreeing to procure marijuana for him' and 'That when the defendant procured the marijuana for Officer Pryor he stated to Officer Pryor in effect that if Officer Pryor again wanted to obtain marijuana through the defendant, defendant would introduce him to the person from whom he had obtained it.' The affidavit further avers that trial counsel because of inadvertence did not establish the foregoing matters at the trial.

The legislation (Code Civ.Proc. § 956a) which gives appellate courts evidence-taking and fact-finding powers (pursuant to Cal.Const., art. VI, § 4 3/4) does not convert the appellate courts into triers of fact or abrogate the general rule that findings of the trial court based on substantial evidence are conclusive on appeal. The purpose of section 956a is to enable appellate courts, in appropriate cases, to terminate litigation by affirmance, or modification and affirmance, of the judgment, or by reversal with directions to enter judgment for appellant if it appears that on no reasonable theory could respondent make a further showing in the trial court. (Tupman v. Haberkern (1929), 208 Cal. 256, 269-270, 280 P. 970; In re Estate of Schluttig (1950), 36 Cal.2d 416, 421-422, 224 P.2d 695).

Defendant relies upon Bassett v. Johnson (1949), 94 Cal.App.2d 807, 812(4), 211 P.2d 939, which bases a general reversal upon additional evidence received by the appellate court and announces that 'where * * * the additional evidence is of such a nature that its effect on the appeal is decisive, such additional evidence, in the discretion of the court, can be and should be taken even though a judgment in favor of appellant is not directed.' The Schluttig case (1950), supra, at page 423(1, 2) of 36 Cal.2d, at page 699 of 224 P.2d, holds that section 956a of the Code of Civil Procedure does not warrant an appellate court's general reversal of a judgment on the basis of newly discovered evidence presented in the appellate court and disapproves the contrary view of In re Estate of Culver (1947), 81 Cal.App.2d 640, 645-646, 184 P.2d 738. In view of the Schuttig decision, the above quotation from the Bassett case (1949), supra, 94 Cal.App.2d 807, 812(4), 211 P.2d 939, cannot be considered to represent existing law.

Here the officer's testimony which defendant wishes to produce on appeal would corroborate defense testimony to the effect that defense testimony to obtain the drug for the officer. Although the officer's testimony, because of its source, would no doubt have had greater probative value in the trial court than the testimony of defendant and his wife (see People v. Carter (1957), 48 Cal.2d 737, 748(7), 312 P.2d 665), an appellate court could not weigh the officer's testimony with the testimony which is transcribed in the record and conclude as a matter of law that defendant was more reluctant than the trial court found him to have been. Furthermore, the failure to adduce the testimony when the officer was on the stand at the trial is not sufficiently explained. Therefore, the application to produce additional evidence should be denied.

The People rely on the holding of People v. Cowan (1940), 38 Cal.App.2d 144, 153, 100 P.2d 1079, that 'The constitutional provision (art. VI, § 4 3/4) and the code section (Code Civ.Proc. § 956a) do not apply to criminal cases.' This court and other district courts of appeal have expressly or by implication declined to pass on the correctness of this Cowan holding. Instead, applications to produce additional evidence on appeal in criminal cases have been denied on the grounds that a jury trial was not waived (People v. Carmen (1954), 43 Cal.2d 342, 349(7), 273 P.2d 521; People v. Mendes (1950), 35 Cal.2d 537, 549(9), 219 P.2d 1; People v. McKinney (1957), 152 Cal.App.2d 332, 335(3), 313 P.2d 163; People v. Willison (1932), 122 Cal.App. 760, 762(5), 10 P.2d 766; People v. Myers (1932), 122 Cal.App. 675, 678(3), 10 P.2d 498), or that the evidence would be merely cumulative to or contradictory of evidence introduced at the trial (People v. Lariscy (1939), 14 Cal.2d 30, 33(6), 92 P.2d 638; People v. Dutton (1937), 9 Cal.2d 505, 507(5), 71 P.2d 218; People v. Skelly (1936), 5 Cal.2d 283, 287(2), 54 P.2d 1; People v. Laisne (1958), 163 Cal.App.2d 554, 559(8), 329 P.2d 725), or that defendant did not show that the evidence was unavailable at the trial (People v. Mayes (1947), 78 Cal.App.2d 282, 287(3), 177 P.2d 590). At this time it remains unnecessary to decide whether additional evidence could be produced on appeal in an appropriate criminal case.

Defendant urges that the California law as to entrapment is the same as that set forth in Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; that here, as in the Sherman case, undisputed testimony of prosecution witnesses establishes the defense as a matter of law; and that therefore, as in the Sherman...