People v. Hicks

• Decision Date: 14 November 1963
• Docket Number: Cr. 4249
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wardell HICKS, Defendant and Appellant.

Page 149

35 Cal.Rptr. 149

222 Cal.App.2d 265

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wardell HICKS, Defendant and Appellant.

Cr. 4249.

District Court of Appeal, First District, Division 1, California.

Nov. 14, 1963.

Hearing Denied Jan. 7, 1964.

Paul C. Rosenthal, San Francisco (under appointment of the District Court of Appeal), for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Presiding Justice.

Defendant appeals from conviction, after jury trial, of violation of section 11503, Health and Safety Code (offering unlawfully to sell and furnish a narcotic to a person and delivering a substance other than such narcotic). ¹

SOLE QUESTION PRESENTED.

Is section 11503 unconstitutional as being vague, uncertain and arbitrary? No.

EVIDENCE.

Defendant does not contend that the evidence is insufficient to support the conviction. A brief resume of it follows:

The facts are not in dispute. (On April 21, 1962, at about 11:00 p. m. Officer Lawrence of the San Francisco Police Department went into a bar on Divisadero Street known as the Morocco Club and saw defendant seated at a table with a woman. During the next 10 or 15 minutes Officer Lawrence observed three men successively seat themselves at the defendant's table. With each such person there was a movement of hands under the table and an object which appeared as if it might be money was passed over the top of the table. After the third man left, Officer Lawrence made a friendly gesture to defendant, and defendant then called him to his table and offered to sell him marijuana cigarettes. Officer Lawrence refused the offer but stated that he was going to have a party and was interested in purchasing a larger amount of marijuana at a later date. Arrangements were made to meet on April 23, 1962, for that purpose.

Officer Lawrence returned to the club at approximately 8:30 p. m. on April 23, 1962, and asked defendant whether or not he had 'got the stuff.' Defendant said he had only about 15 or 20 marijuana cigarettes. Officer Lawrence told defendant that he was not interested in that amount, whereupon defendant told Lawrence that if he (defendant) went out he might be able to get more. Defendant then left the club.

Defendant returned to the club some 50 minutes later with a brown paper bag and motioned Officer Lawrence outside. According to Officer Lawrence, defendant then said: 'I'm not going to hand this stuff to you. I'm going to put it down on this doorway so you can pick it up and follow me back into the bar and pay me off.' Defendant then put the bag down. Officer Lawrence picked it up and followed defendant back into the club. Defendant proceeded to the men's lavatory. Officer Lawrence stopped at the bar to change a $20 bill, and then followed defendant into the men's room. He there handed defendant two $20 bills and a $10 bill, the amount agreed upon for the quantity of marijuana purported to be sold. Officer Lawrence then left the club followed by defendant. Defendant was arrested as he left the club. The money was not on his person but was later found secreted behind some beer cases between the lavatory and south wall of the club.

Defendant did not testify.

The contents of the bag picked up by Officer Lawrence turned out on analysis not to be marijuana.

CONSTITUTIONALITY OF SECTION 11503.

Section 11503 provides: 'Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any narcotic to any person, or offers, arranges, or negotiates to have any narcotic unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any narcotic shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years.'

The contention of defendant that the section is unconstitutional is directly answered negatively to him in People v. Shephard (1959) 169 Cal.App.2d 283, 337 P.2d 214 (petition for hearing denied by Supreme Court) where it was contended that section 11502 was unconstitutional. Section 11502 as it then read was repealed in 1959, and its identical wording adopted in section 11503.

In upholding the constitutionality of the then section 11502 in a fact situation very similar to that in the case at bench, the court pointed out that the 1953 progress report to the Legislature by the Assembly Interim Committee on Judiciary, gave the reasons for the enactment of section 11503. The report noted that prior to the enactment of that section nothing could be done with persons who agree to furnish, etc., a narcotic but because they might feel that they were dealing with a law enforcement officer, deliver some nonnarcotic substance to test out the officer. The result, the committee noted, was that although they had the intent to commit a narcotics crime, they were in a position to violate the law subject only to the normal 'bunco' provisions. The proposed section would permit a more serious penalty. The court then held that the statute was aimed at preventing encouragement in the selling of narcotics, or in the agreeing to sell them, that the subject had a reasonable relation to the object which it purported to carry out and to a tendency to protect the public safety and health, and that the statute was well within the police power of the state.

Defendant seeks to escape the effect of Shephard in two ways. He contends (1) that the only purpose of the statute is 'to accomplish indirectly what is proscribed to be done directly, namely to entrap a suspected criminal,' and (2) that the statute is vague as no provision is made for determining the intent of the person delivering the nonnarcotic at the time of the offer to sell.

As stated in 14 Cal.Jur.2d section 208, page 453, 'In the absence of some persuasion or inducement outside the ordinary transaction of purchase and sale between a willing purchaser and willing seller, where a person is engaged in illegal sales, the fact that a particular sale for which he is prosecuted was induced by a police officer does not show entrapment. * * * The mere request for the unlawful commodity and payment of the price thereof is not considered, in law, such an inducement to the unlawful sale as would render the defense of entrapment effective.' There is nothing in the statute which permits or countenances 'entrapment.' To constitute entrapment the criminal design must originate in the mind of the officer, not in that of the accused. The accused must be induced by the officer to commit a crime which he would not otherwise have committed. (See People v. Burnett (1962) 204 Cal.App.2d 453, 456, 22 Cal.Rptr. 320.) 'Entrapment is an affirmative defense imposing upon the accused the burden of providing that he was induced to commit the crime of which he is charged. [Citation.] The existence or non-existence of entrapment is a question of fact for the trier of fact who is the sole judge of the weight and worth of the evidence.' (People v. Gutierrez (1954) 128 Cal.App.2d 387, 390, 275 P.2d 65, 66.) ² There is nothing in section 11503 that changes the existing rules as to entrapment.

As to the second contention, that the section is vague as not providing criteria for determining intent, defendant urges that the statute might apply to innocent conduct, citing three hypothetical situations where the offers to sell were either to quiet a harassing wife or were in jest. '[T]he legality of statutes is not measured by extreme or unlikely situations.' (People v. Ferguson (1933) 129 Cal.App. 300, 304, 18 P.2d 741, 742.) Moreover, defendant may not question the application of the statute to others who are not in the same category as himself. Defendant did not testify that his offer to sell narcotics to the officer was innocently done. He did not testify at all. Hence, there is no evidence to bring him in the category of one desiring to escape harassment or acting in jest. 'It is a wellsettled rule, however, that in order to raise a constitutional question the party complaining must show that his rights are injuriously affected by the portion of the law he is attacking; that it must appear he is aggrieved by the operation of that particular part of the law.' (In re Durand (1935) 6 Cal.App.2d 69, 70, 44 P.2d 367; see American Distilling Co. v. Johnson (1955) 132 Cal.App.2d 73, 80, 281 P.2d 598; People v. Black (1941) 45 Cal.App.2d 87, 96, 113 P.2d 746; People v. Perry (1931) 212 Cal. 186, 193, 298 P. 19, 76 A.L.R. 1331; In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305.)

As pointed out in Shephard, supra, the Legislature clearly intended to discourage anyone from engaging or appearing to engage in the narcotics traffic. 'In any event, without the assistance of the Interim Committee Report, it is apparent that the legislature had the intention of discouraging anyone from engaging or appearing to engage in the narcotics traffic. Anything which gives sustenance, solace, comfort or encouragement in the selling of narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the legislature. It is clear that the statute in question was aimed at discouraging any traffic in narcotics and is therefore within the police power of the state.' (Shephard, supra, 169 Cal.App.2d p. 288, 337 P.2d p. 216.) As it cannot be said that the statute has no reasonable tendency to protect the public safety and health, 'the decision of the legislative body as to the necessity or reasonableness of the regulation, is conclusive.' (Shepard, supra, 169 Cal.App.2d p. 288, 337 P.2d p. 217.)

Defendant admits that the Legislature...