People v. Kern, Cr. 3216

Decision Date15 August 1968
Docket NumberCr. 3216
Citation264 Cal.App.2d 962,71 Cal.Rptr. 105
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Bruce Carl KERN, Defendant and Appellant.
OPINION

COUGHLIN, Acting Presiding Justice.

Defendant was convicted of the unlawful sale of Lysergic Acid (LSD); was granted probation; and appeals, contending (1) the evidence establishes entrapment as a matter of law; and (2) a condition of probation that he submit to search and seizure at any time by any law enforcement officer is unreasonable.

The sale occurred on July 19, 1967; was arranged by a 'confidential informant' named McNerney, acting on direction of an undercover agent named Mooney; and was made to the latter.

Mooney received information from an undisclosed informant that a number of named individuals living at a designated address had 'approximately 300 tablets of LSD for sale'. McNerney indicated he knew some of the individuals; upon direction from Mooney went to the designated address; met defendant at this place; told the latter he knew somebody who wanted to buy LSD; and received the reply defendant did not have any LSD to sell but he knew somebody who had some. Thereafter McNerney again contacted defendant. It was arranged between them that either defendant or someone else would meet McNerney at a designated time and place to effect a sale. The contact was made as planned. Mooney was present; told defendant he wanted to purchase some LSD; and received a reply he, defendant, had 100 he would sell for $250. Mooney asked if the LSD was any good and defendant told him 'he had tried it, and it was good.' Thereupon defendant left, saying 'I'll go back to the house. I believe my partner has them counted out now'; returned with the LSD; delivered it to Mooney; and was paid $250. Mooney told defendant if the LSD was good he wanted to buy more of it but would not pay the same price. Defendant told him the price would be cheaper next time. At this time Mooney asked defendant if he could purchase some marijuana. The latter replied he had a friend coming into town later on that day from whom he would be able to obtain some marijuana.

The defense of entrapment is not established as a matter of law where the evidence warrants the inference the defendant had a pre-existing intent to sell dangerous drugs (People v. Nunn, 46 Cal.2d 460, 471, 296 P.2d 813; People v. Terry, 44 Cal.2d 371, 372--373, 282 P.2d 19; People v. Rivers, 188 Cal.App.2d 189, 193, 10 Cal.Rptr. 309); that defendant was not an innocent person seduced into the commission of the offense by a government agent (People v. Rivers, supra, 188 Cal.App.2d 189, 192--193, 10 Cal.Rptr. 309; People v. Chavez, 184 Cal.App.2d 741, 743, 7 Cal.Rptr. 729; People v. Schwartz, 109 Cal.App.2d 450, 455, 240 P.2d 1024); and any persuasion or inducement used to effect the sale was no more than necessary to effect an ordinary sale. (People v. Benford, 53 Cal.2d 1, 10, 345 P.2d 928; People v. Braddock, 41 Cal.2d 794, 802, 264 P.2d 521; People v. Makovsky, 3 Cal.2d 366, 370, 44 P.2d 536; People v. Barone, 250 Cal.App.2d 776, 781--782, 58 Cal.Rptr. 783; People v. DeJean, 249 Cal.App.2d 220, 228--229, 57 Cal.Rptr. 211; People v. Munoz, 198 Cal.App.2d 649, 656, 18 Cal.Rptr. 82.)

In the case at bench an inference defendant had a pre-existing criminal intent is supported by evidence showing (1) he readily accepted McNerney's suggestion to sell LSD to a third person whom he did not know; (2) he was not persuaded, deceived or coerced to make the sale; (3) he had a source of supply; (4) he lived with a seller; (5) he associated with people who were users; (6) he fixed the price which was in accord with that received by those engaged in the illegal sale of LSD; and (7) he had a source of and a willingness to sell marijuana. (People v. Sweet, 257 A.C.A. 192, 195, 65 Cal.Rptr. 31; People v. Estrada, 211 Cal.App.2d 722, 726, 27 Cal.Rptr. 605; People v. Munoz, supra, 198 Cal.App.2d 649, 657, 18 Cal.Rptr. 82.)

The evidence shows McNerney did no more than suggest to defendant, a suspected law violator, that the latter sell LSD to a third person, and defendant acted on this suggestion. These circumstances do not establish entrapment. (People v. Benford, supra, 53 Cal.2d 1, 10, 13, 345 P.2d 928; People v. Sweet, supra, 257 A.C.A. 192, 195, 65 Cal.Rptr. 31; People v. Schwartz, supra, 109 Cal.App.2d 450, 455, 240 P.2d 1024.)

Defendant was granted probation upon condition, among others, that he...

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  • Mannino, In re
    • United States
    • California Court of Appeals Court of Appeals
    • 1 Febrero 1971
    ...U.S. 1028, 90 S.Ct. 576, 24 L.Ed.2d 524; In re Peeler (1968) 266 Cal.App.2d 483, 488--489, 72 Cal.Rptr. 254; People v. Kern (1968) 264 Cal.App.2d 962, 964--965, 71 Cal.Rptr. 105; People v. Dominguez (1967) 256 Cal.App.2d 623, 626--627, 64 Cal.Rptr. 290; and People v. Bresin (1966) 245 Cal.A......
  • U.S. v. Consuelo-Gonzalez
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    ...defendants accepting probation with special conditions have consented to searches pursuant thereto. See, e. g., People v. Kern, 264 Cal.App.2d 962, 71 Cal.Rptr. 105, 107 (1968); State v. White, 264 N.C. 600, 142 S.E.2d 153 Consent by the defendant, however, is more likely to be nominal than......
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    • Iowa Supreme Court
    • 18 Julio 2014
    ...subject to a search by law enforcement officers at any time, he will be less inclined to [violate the law].People v. Kern, 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105 (Ct.App.1968); accord People v. Bravo, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, 342 (1987); Himmage v. State, 88 Nev. 2......
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    • California Court of Appeals Court of Appeals
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    ...other grounds in People v. Lent , supra , 15 Cal.3d at p. 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545, quoting People v. Kern (1968) 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105.)Like most, if not all, probationers, defendant here was ordered as a condition of probation to "[o]bey all laws app......
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