People v. Moreno, Cr. 10397

• Decision Date: 21 October 1965
• Docket Number: Cr. 10397
• Citation: 47 Cal.Rptr. 287,237 Cal.App.2d 602
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse Harum MORENO, Defendant and Appellant.

Page 287

47 Cal.Rptr. 287

237 Cal.App.2d 602

The PEOPLE, Plaintiff and Respondent, v. Jesse Harum MORENO, Defendant and Appellant.

Cr. 10397.

District Court of Appeal, Second District, Division 4, California.

Oct. 21, 1965.

Hearing Denied Jan. 12, 1966.

Phillip Bronson, under appointment by the District Court of Appeal, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

Defendant appeals from a judgment entered upon his conviction, in a trial by the court, of three counts which charged the violation of section 11531 of the Health and Safety Code, sale of marijuana. He was sentenced to state prison after rejection by the Youth Authority and the denial of probation by the court. In the single contention raised by defendant, he maintains that the uncontradicted testimony of the police officer who made the alleged purchases, established the defense of entrapment as a matter of law.

The People's case consisted chiefly in the testimony (as contained in the preliminary hearing transcript), of Sam Epolito, a Los Angeles police officer assigned to undercover work by the narcotics division of the police department. The officer testified that he purchased marijuana from defendant on March 17, March 25, and April 3, 1964. On March 17 he met appellant, codefendant Marcus Luna and one Bobby Lee Williams, at the corner of Palos Verdes and Sixth Street, in San Pedro. Luna asked the officer if he wanted to get some 'weed'. The officer said 'Yes' and gave Luna $5. Both appellant and codefendant Luna told Officer Epolito and Williams to go to a pool hall located at 531 South Beacon Street and to wait there. After Williams received a phone call at the pool hall, Williams and Officer Epolito drove to the corner of Twelfth and Beacon Streets. They waited a few minutes, and then appellant came over to their automobile and handed the officer ten cigarettes and $2 in change. On March 25 Epolito met appellant at the Beacon Street pool hall. Appellant asked the officer if he wanted some 'joints'. Epolito answered affirmatively. They then drove in the officer's car to Cabrillo and Crestwood Streets where appellant got out of the car and left the officer. He returned a short time later with four cigarettes and gave them to the officer. In exchange Epolito gave him $2. On April 3 Officer Epolito met appellant at 711 West Second Street, San Pedro. They drove in the officer's car to an alley off Mesa Street between 15th and 16th Streets. Epolito handed appellant $20 and asked appellant to get him two 'cans' of marijuana. Appellant left the car and entered an apartment house. When he returned they drove to 711 West Second Street. Appellant left the car, went over to his own car, which was parked nearby, and opened the trunk. He then came back to the officer's car and handed the officer two wax paper sacks. On each of the three above enumerated occasions Officer Epolito took the items which appellant had given him to the property division of the Police Department. It was stipulated that the items were found to contain marijuana.

On cross-examination Officer Epolito was asked whether, when he first met appellant, he had 'befriended' him. In answer, the officer testified that he first met appellant a few days before the first 'buy'; on this occasion he had spent about half an hour helping appellant to put brakes on his car; he also drove appellant to a junk yard to buy some parts for the car. In response to further questioning by defense counsel Epolito testified that, during the period prior to the first sale, he had spent some time at appellant's sister's house; during this time appellant had not approached him in regard to the purchase or sale of any narcotics; the officer first brought up the question of narcotics when he asked appellant if he could get the officer a half pound of narcotics.

In his defense appellant testified that he purchased marijuana for Officer Epolito on the three occasions alluded to by the officer, but that he had done so only after the officer had repeatedly asked him to. He made the purchases because the officer had done him favors. When the officer first asked for marijuana, appellant told him that he had no idea where he could get it. Epolito then told him about a fellow he knew by the name of Mike or Ike. The officer said he did not want to approach this person because he did not get along with his wife. Appellant made the three buys from this man.

Factually, the oft cited case of People v. Benford, 53 Cal.2d 1, 345 P.2d 928, is quite...