People v. Richards

• Decision Date: 26 December 1961
• Docket Number: Cr. 7750
• Citation: People v. Richards, 198 Cal.App.2d 465, 17 Cal.Rptr. 845 (Cal. App. 1961)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jean Delores RICHARDS and Lewis Bonin, Defendants and Appellants.

Page 845

17 Cal.Rptr. 845

198 Cal.App.2d 465

PEOPLE of the State of California, Plaintiff and Respondent, v.Jean Delores RICHARDS and Lewis Bonin, Defendants and Appellants.

Cr. 7750.

District Court of Appeal, Second District, Division 2, California.

Dec. 26, 1961.

John H. Marshall, Los Angeles, for appellant Richards.

Ellery E. Cuff, Public Defender, James L. McCormick, Deputy Public Defender, Los Angeles, for appellant Bonin.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Matthew M. Kearney, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

In Count I of a grand jury indictment defendant Richards was accused of violating section 11501, Health and Safety Code, in that on August 19, 1960, she sold, furnished and gave away a narcotic (heroin).In Counts II and III both defendants were charged with like offenses, which were alleged to have been committed on August 23d and 24th, respectively.In Count IV defendant Bonin alone was accused of a similar offense on August 31st.The indictment further charged that defendant Richards had suffered a prior conviction of robbery, which she admitted to be true.

A jury found defendants guilty as charged on all counts.Motions for a new trial on behalf of each defendant were denied.Richards has appealed from the judgment.Bonin has appealed from the judgment and from the order denying his motion for a new trial.

Officer Rutherford, of the Los Angeles Police Department, Narcotics Division, was working as an undercover officer on August 19, 1960, when he met defendant Richards, at approximately 11:00 a. m., in the 600 block of Fenn Street, in Los Angeles.He had a conversation with her in which he inquired if he could 'score,' meaning purchase narcotics, to which Richards replied, 'Yes.'They then left and went to a telephone, where Richards made a call.She informed Rutherford that they would have to go to 29th Street and Westmoreland.They drove to that general vicinity.When Richards left the officer's car he handed her two $5.00 bills and a $1.00 bill.She disappeared for a brief period, later returned, and handed Rutherford two $5.00 bills and 75cents in change and stated, 'I owe you a quarter,' and 'the man wasn't there; I will have to go back later.'They returned to the place where they had earlier met.Richards made another telephone call later and directed the officer to drive her back to the locality where he had previously taken her.When she left the car that time the officer handed her two $5.00 bills.Richards again departed on foot, met a man, and was gone for approximately 20 minutes.Upon her return, the officer asked her what took her so long, to which she replied, 'My connection only brought one paper [meaning a bindle containing narcotics], so we had to go back to his room and make up another one for you.'When they returned to their initial meeting place, Richards delivered a white paper bindle to the officer as she left the car.The contents proved to be heroin.(Count I.)

On August 23, 1960, Rutherford met Richardsat 3149 Johnston Street, in Los Angeles.He asked her 'if we could score.' and she replied: 'I don't want to go near the streets with all of my marks * * * Lew [referring to defendant Bonin] will be able to go with you.'¹At this point defendant Bonin entered from another room in the apartment.After some further conversation about narcotics, Richards asked the officer if he would like to score, to which he replied, 'Yes.'Richards then said, 'You go down with Lew.'The officer and Bonin left, whereupon Bonin made a telephone call from a booth in the street.Upon returning to the officer, he said, 'We have to go to 9th and Hoover.'²They drove to the designation mentioned and parked at a small parking lot near a market.The officer inquired as to how much 'stuff' Bonin's contact was bringing.He replied, 'A gram.'They waited for approximately ten minutes, when a man walked through the parking lot.Bonin said, 'There he is.'The officer gave Bonin $10.00, whereupon Bonin left the car but soon returned and informed the officer that he had made the purchase.They then returned to the house [198 Cal.App.2d 468] at 3149 Johnston Street.There Bonin handed the officer a small paper bindle.Richards was in the house at that time, as was another person whom the officer knew only as 'Phil.'The contents of the paper proved to be heroin.(Count II.)

The next day the officer again returned to the same address and inquired of Richards whether she would be able to go down to 9th and Hoover with him.She replied, 'No, but Lew * * * can go down with you.'³A short time later the officer, Bonin and Phil went to 9th and Hoover Streets where Bonin made a purchase; whereupon they returned to the Johnston Street address, where Bonin handed the officer a bindle of whitish powder, which proved to be heroin.(Count III.)

On August 31 Rutherford returned to the Johnston Street address where he again met Richards, who inquired if he wanted to 'score,' to which he replied, 'Yes.'Richards then said: 'Lew is getting ready to go down in a minute.'The officer and Bonin soon left the apartment.After Bonin had made several telephone calls he located a contact that provided him with a paper bindle containing heroin.⁴Upon their return to the Johnston Street apartment he delivered it to Rutherford.(Count IV.)

After Bonin's arrest, Officer Rutherford had a conversation with him in the interrogation room in the presence of two other officers.Rutherford read aloud his notes regarding the transactions with Bonin on August 23, 24 and 31.After hearing the statements from the notes, Bonin said: 'Yes, that is the way it happened.'This conversation was recorded on a tape, which was introduced in evidence at the trial.Bonin testified at the trial.He stated that he did not use heroin, and did not want any of the money or heroin involved in the transactions with Officer Rutherford, whom he first met on August 23d, being introduced to him by Richards.He indicated it was the officer's idea to buy the heroin, and that there were no conversations regarding its purchase in the presence of Richards, with whom he had lived off and on for seven years, and with whom he had lived continuously from March 1960 to the time of the transactions here involved.Richards, however, did not testify.

In seeking a reversal defendants contend: (1) that the evidence is insufficient to sustain the judgment as to all counts on the theory that they were, at most, purchasers of narcotics and not sellers; and (2) that the court erred in refusing to instruct the jury as to the effect and value of circumstantial evidence.Additionally, defendant Richards contends that the evidence is insufficient to sustain her conviction on Counts II and III on the theory that she was not sufficiently involved in the transactions alleged therein.

The theory of defendants' first contention is that they were acting as mere agents for the buyer, i. e., Rutherford, and as such are not guilty of aiding or procuring the sale of narcotics.The People, however, contend that when a defendant procures and furnishes narcotics to another even in the role of 'go-between' with respect to a purchaser and supplier, or seller and buyer, such person is guilty of violating section 11501, Health and Safety Code.

Defendants' theory has been considered and rejected in a number of cases.In People v. Grijalva, 48 Cal.App.2d 690, 121 P.2d 32, the defendant was charged with two counts of selling, furnishing or giving away marijuana.There a narcotics officer was introduced to the defendant by a man named Willis who was acquainted with the defendant, and who told the officer that the defendant'would be in a position to make proper connections.'The officer and defendant drove to a place designated by the latter; the officer gave the defendant $5.00 'to go and get the marijuana from the particular connection where he was going.'Shortly thereafter the defendant returned in company with another man and handed the officer a package containing 20 marijuana cigarettes.A similar transaction occurred on a later date.In answer to the argument on appeal that there was no evidence that appellant made a sale, the court stated (p. 693, 121 P.2d p. 34): 'It was shown by the prosecution that the officer gave appellant $5 on two different occasions and on each occasion appellant returned and gave to the officer twenty marijuana cigarettes.In each transaction appellant took the money of the officer, obtained the cigarettes and delivered them to said officer.This constituted a sale.'In People v. Beccera, 175 Cal.App.2d 53, 345 P.2d 269, the defendant was found guilty of a sale of heroin based upon the facts that in answer to a narcotic agent's question that he was looking for three papers of heroin for $20.00, defendant directed the agent to come with him; whereupon they drove in defendant's automobile to a place near some railroad tracks; the agent gave defendant $20.00, defendant left, and in about 10 minutes returned with Ramirez, whereupon all of them drove a few more blocks and entered a vacant lot, where they parked; Ramirez told defendant that 'the stuff is out there'; defendant and Ramirez got out of the car and pulled out a rubber balloon containing heroin from a rubbish pile.Defendant thereupon gave the heroin to the agent.It was argued on appeal that defendant was acting only as the agent of the buyer, and that Ramirez was in fact the only seller.In response to the argument, the court stated (p. 55, 345 P.2d p. 270)'There is no merit in this contention, for 'all persons concerned in the commission of a crime * * * whether they directly commit the act constituting the offense, or aid and abet in its commission * * * are principals.'Penal Code, § 31.The most that can be said from the evidence is that the question of whether or not appellant was the agent of Lopez or a seller operating...