People v. Salas

• Citation: 123 Cal.Rptr. 903,51 Cal.App.3d 151
• Decision Date: 02 September 1975
• Docket Number: Cr. 2118
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuel Richard SALAS, Defendant and Appellant.

Page 903

123 Cal.Rptr. 903

51 Cal.App.3d 151

The PEOPLE, Plaintiff and Respondent, v. Manuel Richard SALAS, Defendant and Appellant.

Cr. 2118.

Court of Appeal, Fifth District, California.

Sept. 2, 1975.

Hearing Denied Oct. 30, 1975.

William K. Rentz, Santa Cruz (Court appointed), for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Paul V. Bishop, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GINSBURG, Associate Justice. ^*

Appellant was found guilty of a violation of Health and Safety Code section 11352, possession of heroin for sale. The jury also found that appellant had a prior felony conviction, possession of marijuana. He appeals from the whole of this judgment.

One Edward Faias, a narcotic user, approached appellant in a tavern and asked to purchase some heroin. Faias was a police informer who had been skin-searched by police officers, wired with a concealed portable transmitter designed to broadcast to a tape recorder, provided with $10, and sent forth for the specific purpose of purchasing heroin from appellant. Faias claimed to have purchased heroin from appellant before. He was being paid by the police for his efforts as an informer, and he also may have expected to escape prosecution for a pending suspected burglary.

The taped record was garbled and inconclusive as to what took place, but an officer who monitored the conversation at the scene and heard parts of it was able to positively identify the voice of appellant. Other evidence was conflicting as to whether Faias made a purchase of heroin from appellant, from someone else in the tavern, or at all. But Faias did in fact return from the tavern with a balloon of heroin in his possession, and his testimony that he purchased it from appellant was obviously believed by the jury.

This appeal poses the following questions:

I. Was the evidence sufficient to support the verdict?

Appellant first contends that the evidence was insufficient to support the verdict. We cannot agree. It is established that the testimony of an undercover agent that he purchased narcotics from a defendant under a supervised and controlled buy situation is enough, standing alone, to sustain a conviction. (People v. Langley (1974) 41 Cal.App.3d 339, 347, 116 Cal.Rptr. 80.) Here, there was not only the testimony of the agent, but there was also other substantial evidence, including the testimony of officers who monitored the radio transmission of the transaction while it was taking place and the tape itself. Although there may have been other conflicting evidence, on appeal the evidence must be viewed in the light most favorable to support the judgment (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Redmond (1969) 71 Cal.2d 745, 755--756, 79 Cal.Rptr. 529, 457 P.2d 321); the test is whether substantial evidence supports the conclusion of the trier of fact (People v. Bynum (1971) 4 Cal.3d 589, 599 94 Cal.Rptr. 241, 483 P.2d 1193).

The direct evidence given by the informer and police officers involved in the transaction constituted sufficient substantial evidence to meet this test on appeal.

II. Was the jury properly instructed?

Appellant complains that the jury was improperly instructed as to weighing conflicting testimony (CALJIC No. 2.22) and as to the defense of entrapment (CALJIC Nos. 4.61 and 4.63).

We resolve the objections to these instructions as follows:

A. CALJIC No. 2.22 (weighing conflicting testimony). ¹

Appellant contends that CALJIC No. 2.22 establishes a new and unconstitutional standard of determination of the guilt or innocence of a defendant, pointing out that the case of In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 requires that the prosecution prove its case beyond a reasonable doubt. ² In California, Penal Code section 1096 specifically legislates the standard of reasonable doubt. ³ Appellant contends that the vice of CALJIC No. 2.22 is that it permits the jury to determine facts in reliance upon its determination that one witness is simply more convincing or more credible than another and that it adopts as a standard the Relative convincing force of the evidence, rather than the standard of proof of guilt beyond a reasonable doubt. He further argues that the requirement that each element necessary to prove the prosecution's case be proven beyond a reasonable doubt is violated if any element is proven by a witness who merely 'appeals to (the) mind with more convincing force.'

Appellant's argument would have considerable weight if this instruction stood alone. However, the court properly gave CALJIC No. 2.90 regarding the presumption of innocence, reasonable doubt, and burden of proof. This instruction is a substantial repetition of Penal Code section 1096 (fn. 3, Supra), which, in turn, is the legislative embodiment of the traditional concept of reasonable doubt. Thus, the jury was correctly instructed on the concept of reasonable doubt, and it was unnecessary to give any further instruction on the subject under the provisions of Penal Code section 1096a. ⁴

Over 50 years ago the Supreme Court of California stated: 'It has been so often stated in opinions of this court that the fact that each instruction does not cover the whole case does not make such instruction erroneous, if the instructions, as a whole, did so; that it is unnecessary to cite the cases, or to say more on the subject in this case.' (People v. Mohammed (1922) 189 Cal. 429, 431, 208 P. 963.) Furthermore, included in the instructions given by the court was the admonition contained in CALJIC No. 1.01, which reads in part as follows:

'You are not to single out any certain sentence or any individual point or instruction and ignore the others. You are to consider all the instructions as a whole and are to regard each in the light of all the others.'

Thus, both under judicial rules of construction and the specific admonition of the court, the questioned instruction, CALJIC No. 2.22, must be considered in conjunction with CALJIC No. 2.90. In so doing, it is apparent that the jury was instructed to weigh the relative convincing force of the evidence (CALJIC No. 2.22) only as part of the process of determining whether the prosecution had met its fundamental burden of proving appellant's guilt beyond a reasonable doubt as required by CALJIC No. 2.90.

Although the questioned instruction might have been clearer and more complete had it contained a qualification subjecting the 'relative convincing force of the evidence' to the basic requirement that such force be sufficient to meet the test of reasonable doubt, it cannot be said, in the light of the foregoing authorities and other instructions, that error was committed in the giving of this instruction. B. CALJIC Nos. 4.61 and 4.63 (entrapment instructions).

Appellant complains that the giving of CALJIC Nos. 4.61 and 4.63 ⁵ was erroneous and constituted prejudicial error based primarily upon two grounds: First, that the police conduct contemplated by these instructions constituted an invasion of appellant's right to privacy; and, secondly, that the instructions did not meet the requirements of due process in that they placed the burden of proof on the defendant to show that he was entrapped.

It is clear that one engaging in an illegal activity has no reasonable expectation of privacy when conversing with another person and has...