People v. Oatis

• Decision Date: 25 July 1968
• Docket Number: Cr. 14009
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert OATIS, Jr., Defendant and Appellant.

Page 524

70 Cal.Rptr. 524

264 Cal.App.2d 324

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert OATIS, Jr., Defendant and Appellant.

Cr. 14009.

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

July 25, 1968.

Hearing Denied Oct. 3, 1968.

Earl R. Cohen, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

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

FOURT, Associate Justice.

This is an appeal from a judgment of conviction of selling marijuana.

In an information filed in Los Angeles on November 29, 1966, defendant was charged in count I with a violation of section 11531, Health and Safety Code, in that he did on August 19, 1966, furnish marijuana; in count II he was charged with a similar violation on August 25, 1966. It was further alleged that defendant previously (September 1, 1966) had been convicted of a violation of section 11530, Health and Safety Code. On December 5, 1966, defendant pleaded not guilty and denied the charged prior conviction. On February 9, 1967, after a continuance granted at the request of defendant on January 9, 1967, a jury trial was legally waived and it was stipulated that the cause be submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, each side reserving the right to offer additional evidence. It was further stipulated that all exhibits received at the preliminary hearing were deemed received into evidence, subject to the court's rulings. Additional testimony was taken and defendant was found guilty as charged in counts I and II. There was no finding as to the charged prior conviction as it developed with reference to that matter that on August 8, 1966, defendant was arrested and charged with the possession of marijuana and a violation of the deadly weapons control law. He appeared in court on September 22, 1966, and pleaded guilty to the possession of narcotics charge and the other count was dismissed. Proceedings were suspended and defendant was placed on probation for 5 years. While he was out on bail for that offense he was arrested on the two charges with which we are now concerned. Clearly at the time of the commission of the present offenses defendant had not been convicted of the charged prior although at the time of sentence defendant had been so convicted. Probation was denied. A motion for a new trial was made and denied on May 18, 1967.

The clerk's transcript recites that on May 18th the judge referred the matter to the Department of Corrections for 'review regarding placement of the above named defendant for diagnosis and treatment, pursuant to the provisions of Section 1203.03 Penal Code.' The reporter's transcript recites that after the order of referral under 1203.03 counsel for defendant advised the court that defendant 'wishes to file Notice of Appeal at this time, and he asks the Court to set bail.' The judge called attention to the fact that any such notice was premature and counsel indicated that he understood that defendant could not 'do that until he comes back' from the Chino diagnostic facility. The court then said, 'I don't think a Notice of Appeal prior to the time of sentence is imposed is of any force and effect whatsoever.'

On May 23, 1967, defendant filed his notice of appeal from the order denying his motion for a new trial. On June 1, 1967, when the cause came on for further proceedings the court, after being advised by defendant's counsel in defendant's presence that defendant 'has been accepted under 1203.03' referred the defendant to the Department of Corrections for 90 days for diagnosis and report. The proceedings were adjourned until August 31, 1967. Defendant was taken to Chino; there a diagnosis and an unfavorable report was made and he was returned from Chino on August 4, 1967. On August 10, 1967, the matter came on for hearing, probation was denied and defendant was sentenced to the state prison on each count.

This court has given permission to file a late notice of appeal.

A re sume of some of the facts is as follows: Officer Fred Nixon of the Los Angeles police department was in a hotel on South Avalon Boulevard on August 19, 1966, with a person known to him as Pete Hardy. They were approached by James Alexander, and Hardy said to Nixon: 'Let's go, Fred. James is going to get us a half a pound of weed.' Nixon understood 'weed' to mean marijuana. The three men then drove to a place on 55th Street where Alexander got out of the officer's car and left. Alexander returned with Wallace Stewart who got into the car and directed Nixon to an address on West 81st. There Stewart got out of the car; he returned shortly and asked who was to make the purchase. Nixon said he would; he then left the car and entered the house at 537 West 81 Street at about 12:30 p.m. Inside the house defendant was standing in the kitchen near a counter upon which was a bulk amount of marijuana. Nixon inquired of defendant whether he had any scales with which to weigh the amount he was to purchase. Defendant replied: 'No, the scales aren't here. But it's guaranteed. If the amount is less than half a pound you can bring it back.' Defendant then cut a portion from the block of marijuana, wrapped it in foil and handed it to Nixon. Nixon handed to defendant $50 in bills and left the premises.

On August 25, 1966, Nixon again saw defendant at the same last-named address at about 3:45 p.m. and after talking with Ronald Lewis, who was with defendant in the house, made a purchase of $125 worth of marijuana. The money was paid to defendant and the delivery was made by Lewis.

Appellant now asserts that he was entrapped by Nixon, that the classification and prohibition of possession of marijuana as a crime is unconstitutional, being unreasonable and arbitrary, and that the evidence is insufficient to support the judgment.

The defense of entrapment was not made in the trial court. It cannot be made for the first time on the appeal. (See People v. Tostado, 217 Cal.App.2d 713, 719, 32 Cal.Rptr. 178; People v. Cline, 205 Cal.App.2d 309, 312, 22 Cal.Rptr. 916; People v. Perez, 62 Cal.2d 769, 775, 44 Cal.Rptr. 326, 401 P.2d 934; People v. Braddock, 41 Cal.2d 794, 803, 264 P.2d 521.) There can be no question that the record does not establish that there was entrapment as a matter of law. Appellant's standing near his kitchen sink cutting off a half pound of marijuana, taking $50 and guaranteeing its weight hardly has the ring of entrapment.

Appellant seemingly also complains about the officer's coming back and making the second buy of $125 worth of marijuana, saying in effect that it was unfair of the officer thereby to participate in doubling-up on appellant's troubles. Appellant might have thought of that when he was released on bail in the early part of August for possessing narcotics and might then have given serious thought to discontinuing his illicit course of conduct; rather he chose to sell marijuana as heretofore mentioned, and we are persuaded that he should now suffer the consequences.

With reference to the claimed unconstitutionality of classifying the sale or possession of marijuana as a crime much has been written. ¹ There are many different and divergent viewpoints as to whether marijuana is a social detriment or otherwise. ²

Some courts have made determinations on the subject matter, none of which, so far as our research extends, holds as appellant suggests that this court should hold. See Spence v. Sacks, 173 Ohio St. 363, 183 N.E.2d 363; Gonzalez v. State of Texas, 168 Tex.Cr.R. 49, 323 S.W.2d 55; People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); United States v. Eramdjian, D.C., 155 F.Supp. 914, where it is held that marijuana is definitely related to the drug problem and the evils that flow from the use of drugs and where it is stated at 919, under footnote 3: "The great danger of this drug (marihuana) is the release of inhibitions accompanied by a definite loss of moral sense. The subject is dangerous to handle, has no fear, and can be placed under restraint only with great difficulty. Crimes committed while under the influence of this drug are apt to be of a particularly offensive type, characterized by a complete lack of moral restraint.

"While under the influence of marihuana, juveniles may be more easily introduced to the use of heroin. The typical juvenile addict that comes to the attention of the police in this area has followed a familiar pattern--alcohol, marihuana or barbiturates (sometimes both), then heroin. (Emphasis added.)

"Marihuana is known to be psychologically addicting, but some success is found in effecting a cure if treatment precedes definite mental deterioration.' A Study of Juvenile Drug Addiction in Los Angeles, Los Angeles Police Department, 1952, pp. 15--16.

"Marihuana strikes the central nervous system, greatly affects the mentality and the five physical senses * * * Inhibitions are lost to a greater extent than under the influence of alcohol. A person under the influence of marihuana may believe himself so small that he is afraid to step off the curbstone into the street, or he may feel of enormous size and of superhuman strength. While so intoxicated, because of his high susceptibility to suggestion, he may commit criminal acts and have exaggerated feelings of persecution, unfriendliness and animosity.' 'Effects of Marihuana,' State of California, Department of Justice, Bureau of Narcotic Enforcement, 1953--54, p. 1.'

It is appropriately stated by the Chief Counsel of the Bureau of Narcotics, United States Treasury Department, Donald E. Miller, in Vol. 4, No. 1, Journal of the National District Attorneys Association, in part, as follows:

'* * * Some talented, even brilliant persons have taken marihuana and other hallucinogens and are adding an aura of intellectualism to such abuse.

'* * * The...