People v. Goree

• Citation: 240 Cal.App.2d 304,49 Cal.Rptr. 392
• Decision Date: 21 February 1966
• Docket Number: Cr. 10903
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley Oliver GOREE, Defendant and Appellant.

Page 392

49 Cal.Rptr. 392

240 Cal.App.2d 304

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley Oliver GOREE, Defendant and Appellant.

Cr. 10903.

District Court of Appeal, Second District, Division 3, California.

Feb. 21, 1966.

Rehearing Denied March 11, 1966.

Hearing Denied April 22, 1966.

Douglas L. Glaser, Beverly Hills, under appointment by District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Theodore T. N. Slocum, Deputy Atty. Gen., for respondent.

KAUS, Justice.

A jury convicted defendant on one count of selling, furnishing and giving away marijuana. (Health & Saf. Code, § 11531.) He appeals, his sole contention on appeal being that the trial judge erred in refusing to instruct the jury on the defense of entrapment.

The facts of the case are simple enough: Officer Hall of the Los Angeles Police Department, working in plain clothes and on an undercover assignment entered a pool-room at 10:30 a. m. on May 27, 1964. He had never seen defendant before, nor was defendant under investigation. Sometime thereafter defendant came in and asked Hall to shoot a game of pool. When the first game was over Hall asked defendant to shoot another game. Defendant declined, saying he only had fifty cents and needed it for a 'thing.' ¹ Hall asked defendant whether he could get him 'one of those things.' Defendant said: 'You're not police are you?' Hall: 'No, man you know better than that. I am not the man.'

Hall gave defendant $3.00. Defendant again expressed the hope that Hall was not a policeman, left for fifteen minutes and returned with six marijuana cigarettes. He again said: 'Man, I hope you ain't the police because my cousin got busted just like this once.'

He then gave the cigarettes to Hall, who next saw defendant in the county jail in July of 1964. The record does not show for what offense defendant was then under arrest.

The only question before us is whether an instruction on the doctrine of entrapment should have been given, not whether entrapment was proved as a matter of law.

Unquestionably the People have a strong argument that there was no entrapment as far as the lesser included offense of possession of marijuana is concerned. (Health & Saf. Code, § 11530.) The evidence showed clearly that without urging by Hall defendant intended to buy a 'thing' for himself. The criminal intent to possess did not originate with the officer. On the other hand defendant was convicted of the much more serious offense of selling or furnishing marijuana. A first offender under Health and Safety Code, section 11531 is punishable by imprisonment from five years to life and, if so punished, is not eligible for release for three years. On the other hand a first offender under section 11530 is punishable 'for not less than one year nor more than 10 years' and eligible for release after one year in prison. The question therefore is whether there was any evidence of entrapment concerning the element of the offense of which defendant was convicted which is not a part of the acts prohibited by section 11530 and for which, if the judgment is affirmed, he must serve at least two additional years in prison.

The doctrine of entrapment was elaborately discussed by the Supreme Court in People v. Benford, 53 Cal.2d 1, 345 P.2d 928. The facts of that case are tantalizingly similar to the facts before us. There, as here, an undercover officer struck up a friendship with defendant, suggested the purchase of marijuana and gave money to the defendant who thereafter appeared with 43 grams of the narcotic. There, as here, no particular pressure was exerted on defendant ² and defendant made no money from the transaction. Unfortunately, however, the legal problem presented in Benford was quite different from the one before us. There the only question was whether the evidence showed entrapment as a matter of law, here it is whether there was sufficient evidence of entrapment to submit the question to the jury. At no point in Benford does the Supreme Court say that there was no evidence of entrapment even if all the defense testimony pointing in that direction is disregarded.

Benford also reenunciates the rule that the availability of entrapment as a defense depends upon whether the intent to commit the crime originated in the mind of defendant or in the mind of the policeman. (People v. Benford, supra, p. 10, 345 P.2d 928.) In this state, however, we do not admit independent evidence of past criminal involvement to prove where the intent originated. ³ In many cases the conclusion that the policeman has merely afforded an opportunity for the commission of an offense and has not entrapped an innocent defendant is reached by proof that the defendant is regularly engaged in committing the prohibited acts. Evidence of such regularity is often quite circumstantial. The readiness with which the defendant commits the crime charged is often most probative. The Supreme Court cites four cases of this type: People v. Ramos, 146 Cal.App.2d 110, 303 P.2d 783; People v. Caudillo, 138 Cal.App.2d 183, 291 P.2d 191; People v. Neal, 120 Cal.App.2d 329, 261 P.2d 13 and People v. Branch, 119 Cal.App.2d 490, 260 P.2d 27. These four cases, which are fairly representative of a large number of similar ones merely prove, in our view, that a finding that Goree was not entrapped would be supported by the evidence, but they do not compel it.

Thus in People v. Ramos, supra, an informer in the company of an undercover officer telephoned defendant. Nothing was said about narcotics. Defendant showed up ten minutes later. The informer asked him whether he had the 'stuff.' Defendant replied in the affirmative and after some hesitation handed the informer ten capsules of heroin. At the trial defendant offered testimony of strong persuasion by the informer. In affirming the conviction the appellate court merely held that the resolution of the factual conflict was for the trial court and that, since defendant arrived with narcotics without anybody ever having said anything about drugs, an inference arose that the officer and the informer merely provided 'the occasion for one engaged in illegal activities to ply his trade.'

It seems important to us to note that the readiness with which the defendant in Ramos furnished the narcotics did not, in the court's view, in itself destroy the theory of entrapment. It was, rather, the legitimate inference, under all of the circumstances of the case, that the readiness implied that defendant was regularly engaged in illegal activities and that the informer's request merely gave him an opportunity to 'ply his trade.'

However despicable and illegal it may be, the sale of narcotics is often conducted as a trade and persons engage in it on a more or less regular basis. As the Supreme Court points out in Benford the very fact that the offense is one of a kind habitually committed is one of the circumstances which may lead one to arrive at the conclusion that a defendant was regularly engaged in lawless activity. (People v. Benford, 53 Cal.2d 1, 12, 345 P.2d 928.) Furnishing narcotics as a social favor, however, is not a trade.

The other three cases cited by the Supreme Court for the proposition that the readiness with which a defendant commits the crime charged, People v. Caudillo, 138 Cal.App.2d 183, 291 P.2d 191; People v. Neal, 120 Cal.App.2d 329, 261 P.2d 13 and People v. Branch, 119 Cal.App.2d 490, 260 P.2d 27, all are more or less similar on their facts and in each the only question on appeal was whether entrapment was shown as a matter of law. These and a veritable host of similar cases (6B McK.Dig., Criminal Law, § 50) are readily distinguishable from the case before us for the two reasons alluded to: 1. the question on appeal was not merely, as it is here, whether there was substantial evidence of entrapment and whether an instruction on the doctrine should have been given; and 2. the facts surrounding the sales in question permitted an inference of regularity. ⁴

Discussing these two bases of distinction further, the following observations seem proper: it must be recognized that many decisions which hold that under the circumstances of the particular case entrapment was not shown as a matter of law, go further and contain statements to the effect that there was no substantial evidence of entrapment. Thus in People v. Hutcherson, 197 Cal.App.2d 771, 17 Cal.Rptr. 636, this court said: 'The fact that an informer solicited the appellant to furnish marijuana would not alone give rise to an inference of entrapment.' (Ibid., p. 780, 17 Cal.Rptr., p. 642.) In making this statement we relied on People v. Richardson, 152 Cal.App.2d 310, 318, 313 P.2d 651, which in turn cited People v. Evans, 134 Cal.App.2d 733, 737, 286 P.2d 368, which indeed is a case involving the question of whether instructions on entrapment should have been given rather than whether the defense was proved as a matter of law. But in Evans the evidence disclosed far more than mere solicitation by an informer. It showed on the defendant's own admission that he was deeply involved in the narcotics traffic.

Similarly we often find the statement in cases of this type that where no more presure is brought to bear on the defendant than is necessary in the course of an ordinary sale, there is no entrapment. (People v. Braddock, 41 Cal.2d 794, 802, 264 P.2d 521; People v. Harris, 213 Cal.App.2d 365, 369, 28 Cal.Rptr. 766; People v. Hutcherson, supra, 197 Cal.App.2d 780, 17 Cal.Rptr. 636; People v. Lindsey, 91 Cal.App.2d 914, 917, 205 P.2d 1114; People v. Heusers, 58 Cal.App. 103, 207 P. 908; People v. Barkdoll, 36 Cal.App. 25, 171 P. 440.) The last cited case, People v. Barkdoll, appears to be the earliest decision in our state announcing the rule and there again, the question before the court was whether entrapment was shown as a matter of law, not whether an instruction was required....