People v. Rivers

• Decision Date: 12 January 1961
• Docket Number: Cr. 3834
• Citation: 188 Cal.App.2d 189,10 Cal.Rptr. 309
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Mathew RIVERS, Defendant and Appellant.

Page 309

10 Cal.Rptr. 309

188 Cal.App.2d 189

PEOPLE of the State of California, Plaintiff and Respondent, v. Mathew RIVERS, Defendant and Appellant.

Cr. 3834.

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

Jan. 12, 1961.

As Amended Jan. 24, 1961.

Hearing Denied March 8, 1961.

Duane W. Dresser, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, John S. McInerny, Deputy Attys. Gen., for respondent.

KAUFMAN, Presiding Judge.

Appellant was charged by information with one count of violating section 11500 of the Health and Safety Code, for the unlawful sale of narcortics; the information also alleged four prior convictions for narcotics offenses. Appellant admitted the prior convictions and entered a plea of not guilty. On this appeal from the judgment of conviction and the order denying the motion for a new trial entered on a jury verdict finding him guilty, it is argued that: (1) The evidence as a matter of law established his claimed defense of entrapment. (2) The trial court erred in failing to instruct on entrapment on its own motion. (3) The judgment is duplicitous and uncertain. There is no merit in any of these arguments.

As no contentions are raised on appeal as to the sufficiency of the evidence to sustain the judgment, a brief review of the facts will suffice. A few days before December 2, 1959, a Mrs. Gloria Lomack, a special employee for the Narcotics Bureau, telephoned the appellant and arranged for a meeting for the purchase of narcotics. About 9:00 p. m. on December 2, Inspectors Lee, Fahey and Kane of the U. S. Narcotics Bureau, met with Mrs. Lomack in the vicinity of Laguna and Turk Streets. She was searched, including her handbag and jacket pockets, and supplied with $50 of government funds. Agent Lee and Agent Fahey followed Mrs. Lomack as she left the car and walked to the Manor Plaza Hotel on Fillmore Street between Fulton and McAllister Streets.

Shortly thereafter, Mrs. Lomack met the appellant. They exchanged words and touched hands. The appellant then entered the hotel while Mrs. Lomack remained in the street. He returned about 2 minutes later, and then walked to a drug store at Fillmore and McAllister Streets with Mrs. Lomack. Agent Lee followed them. After the appellant and Mrs. Lomack left the drug store, they walked back toward the hotel. Agent Lee still followed. The appellant re-entered the hotel while Mrs. Lomack waited on the street. After 10 minutes or so, the appellant returned and walked north on Fillmore Street with Mrs. Lomack. They stopped in the middle of the block and their right hands met. The appellant then turned and went back toward the hotel while Mrs. Lomack continued walking north on Fillmore Street where she was picked up by Agent Kane in the automobile. She gave a red balloon containing heroin to Agent Lee and returned $10 of the $50 in federal funds which had been given to her. Mrs. Lomack was under the surveillance of the agents during the entire period of time. She did not meet or talk to any person other than the appellant.

On December 15, several inspectors visited the appellant in his hotel room and he admitted making the sale to Mrs. Lomack. His arrest followed. At the trial, appellant took the stand in his own behalf, denied selling narcotics to Mrs. Lomack. He further stated that his meeting with her on December 2 had been accidental and that he had merely lent her $2 at her request. Mrs. Lomack, although a witness for the defense, testified that the appellant had sold her a balloon of narcotics, and that the transaction occurred in the manner established by the testimony of Agent Lee. She also stated that when she went to the drug store with the appellant, he bought some red balloons.

The first argument on appeal is that the defense of entrapment was established as a matter of law. Appellant bases his argument on Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. In that case, the informer, one Kalchinian, accidentally met the defendant at a doctor's office where apparently both were being treated to be cured of narcotic addiction. At this time, the informer, was not being paid by the government, but was an active informer who had instigated at least two other prosecutions. Repeated accidental meetings at the doctor's office progressed to a discussion of mutual experiences and problems including their attempts to overcome addiction. Finally, Kalchinian asked the defendant for a good source of narcotics. The defendant tried to avoid the issue. Not until after a number of repetitions of the request, predicated on Kalchinian's presumed suffering, did the defendant finally acquiesce, and shared a quantity of narcotics with the informer. The informer bore the cost of his share of the cost of the narcotics, and after several such transactions, informed agents of the Bureau of Narcotics that he had another seller for them. On subsequent occasions, government agents observed the defendant giving narcotics to the informer in return for money supplied by the government. The government agent in charge testified that he had never bothered to question Kalchinian about the way he made contact with the defendant. In reversing the judgment of conviction, the U. S. Supreme Court sustained the defendant's defense of entrapment as a matter of law, because the court concluded from the undisputed testimony of the prosecution witnesses that the criminal conduct was induced by the conduct of the informer. Aside from the factual distinction between the Sherman case and this one, there is another important difference which our Supreme Court pointed out in its extended analysis of the Sherman case in People v. Benford, 53 Cal.2d 1, 12, 345 P.2d 928, 936:

'Since the prosecution in California cannot prove prior criminality of defendant to overcome the defense of entrapment, the absence of such evidence here does not in and of itself have the significance which it had under federal law in the Sherman case (1958), supra, 356 U.S. 369, 78 S.Ct. 819. .our inquiry is not, as defendant's argument suggests, whether the prosecution has 'overcome the defense of entrapment' (at page 375 of 356 U.S., at page 822 of 78 S.Ct.) but, as he states elsewhere in his briefs, whether the prosecution evidence as a matter of law shows entrapment.'

In this state, the defense of entrapment is available only where the criminal design originates with the officials of the government and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. However, the fact that government However, the fact that government for the commission of the offense does not constitute entrapment. People v. Benford, 53 Cal.2d 1, 345 P.2d 928. '* * * [E]ntrapment as a matter of law is not established where there is any substantial evidence from which it may be inferred that criminal intent to commit a particular offense originated in the mind of the accused * * *.' People v. Nunn, 46 Cal.2d 460, 471, 296 P.2d 813, 820. In the instant case, the appellant knew Mrs. Lomack quite well and had been her boy friend; the evidence indicated that she merely contacted him by telephone. The mere fact that the appellant committed a crime when he was solicited by a decoy does not establish entrapment. The evidence here clearly warrants the inference that the appellant was not an innocent person seduced into a criminal career by officers of the law. People v. Chavez, 184 Cal.App.2d 741, 7 Cal.Rptr. 729; People v. Chin Loy, 185 Cal.App.2d 715, 8 Cal.Rptr. 512. One of the aspects of the illegal business of selling narcotics, is that the willing buyer and willing seller must make some prior arrangements. Thus, the mere fact that Mrs. Lomack made an appointment with the appellant and first mentioned narcotics, is not enough to show entrapment. People v. Braddock, 41 Cal.2d 794, 264 P.2d 521. We can only conclude that the evidence does not even suggest the presence of any entrapment. People v. Chin Loy, supra. It was also, therefore, proper for the trial court not to instruct the jury on entrapment. It is the duty of the trial court in a criminal case to instruct the jury on its own motion on the general principles of law governing the case but this rule does not apply where the necessity for an instruction is not developed by the evidence introduced at the trial. People v. Whalen, 124 Cal.App.2d 713, 269 P.2d 181. In People v. Chin Loy, supra, and People v. Chavez, supra, entrapment instructions were properly given as the evidence warranted such instructions. We may also note that at the trial, the appellant did not assert the...