People v. Shephard

• Decision Date: 31 March 1959
• Docket Number: Cr. 6451
• Citation: 337 P.2d 214,169 Cal.App.2d 283
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Pete SHEPHARD, Defendant and Appellant.

Page 214

337 P.2d 214

169 Cal.App.2d 283

PEOPLE of State of California, Plaintiff and Respondent, v. Pete SHEPHARD, Defendant and Appellant.

Cr. 6451.

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

March 31, 1959.

Hearing Denied May 27, 1959.

Cary G. Branch, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., John M. Huntington, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment of conviction of the crime of violation of section 11502, Health and Safety Code.

In an indictment filed in Los Angeles county, the appellant was charged with a violation of section 11502, Health and Safety Code, in that he did, on or about March 11, 1958, agree to sell and give heroin to George Renty, and did thereafter sell and give to George Renty another substance in lieu of heroin. It was also alleged that the appellant had previously been convicted of the crime of violation of section 11500, Health and Safety Code, and judgment thereon was pronounced about January 4 1954. The appellant pleaded not guilty and denied the prior conviction. The matter was tried before the court without a jury. Appellant was found guilty as charged.

It is difficult, from the record, to determine just what the situation is as to the prior conviction. The from prepared by the Clerk (entitled 'Minutes') which is set forth in the clerk's transcript recites that 'no finding having been made as to the prior conviction.' The reporter's transcript sets forth the following as being the words of the judge: 'and the Court not having presented to it any evidence regarding the truth or falsity of the prior as alleged and as heretofore stated as being alleged, the Court, of course, finds the prior not to be true because of lack of evidence.

'Thereafter, you asked and were granted leave to make written application for probation. This is the time and place to which that matter has been finally continued.'

However, there had been introduced into evidence fingerprints records and a certified copy of the prior commitment papers with reference to the prior conviction alleged in the indictment, and a stipulation by the defendant to the effect that he was the person mentioned in the documents referred to.

Immediately after the statement of the court to the effect that there was no evidence regarding the truth or falsity of the prior, the judge said, 'You were arrested and convicted in 1950, 1953, 1955, 1956, 1957. Each time for narcotics.' And with reference to the same matters, the court said, 'last time he got nine months; the time before a year; the time before that he got nine months; the time before that he got a year.'

The defendant, in any event, made an application for probation and the court permitted the filing of such application, though, under the evidence and circumstances of this case the defendant was, as a matter of law, ineligible to be granted probation. Probation was denied. Judgment was pronounced and the defendant was sentenced to the state prison as a first offender.

A resume of the facts is as follows: Officer Renty of the Los Angeles Police Department was working as an undercover plain-clothes agent of the police department narcotic bureau. He saw the defendant on March 11, 1958, about noontime at the corner of 42nd Street and Central Avenue in Los Angeles. The policeman was with an informant named Earl Jones, whom he had met at the police station, and who resided on West 54th Street. Jones was acquainted with the defendant and at or about the time of the transaction with which we are concerned had said to officer Renty, 'That's Pete Shephard. We will be able to buy stuff from him. * * * He is a peddler.' The officer and Jones then approached the defendant and Jones asked the defendant if he had anything. The defendant replied, 'Yes. I have it stashed. Have you got a short?' The officer replied, 'Yes.' The officer, Jones and the defendant then walked to the officer's car, and at the defendant's direction drove to the Ruth Hotel on Fifth Street, which was several blocks from where they then were. Nothing in particular was said about money on the way down to the hotel. The officer drove the car, Jones sat in the middle of the front seat and the defendant sat next to the door in the front seat. When they arrived at the location of the hotel the defendant got out of the automobile and was gone a few minutes and then returned and said, 'Let's go back on the avenue.' Jones had remained in the car at the hotel. While riding back to 42nd Street and Central Avenue, Jones gave the defendant nine-dollars in exchange for a small balloon which appellant said was $9 worth. Upon receiving the balloon, Jones immediately passed it to officer Renty. The defendant was then driven back to 42nd Street and Central Avenue, and defendant got out of the car. The officer then drove to the police building, marked and booked the balloon and its contents as evidence. The balloon contained a white powder resembling heroin, and an expert testified that the powder was not a narcotic.

Another expert in terminology and methods with respect to the narcotic traffic testified that the balloon has a significance in that it is one of the ways in which narcotics are packaged; that it is done so, in order that the container can be carried in the mouth or other body cavity without the narcotic dissolving or otherwise being affected. It was further testified that in a narcotics transaction, the question, 'Do you have anything?' would mean, 'Do you have any narcotics?' The phrase, 'I have it stashed,' would mean, 'I have it hidden,' and the term, 'Do you have a short?' would mean, 'Do you have a car?' Further that such terms as 'stash' and 'short' are used frequently by people engaged in the trafficking of narcotics.

The appellant testified in his own behalf and denied that he had made any sale of narcotics or supposed narcotics to anyone. He did state, on examination, however, that he did know something about narcotics and that he had been convicted for the use of it. He stated that he knew what to do in making a purchase of it, that is, to give it the taste test to be sure it was heroin and not some other substance.

The defendant also testified that he knew Jones by the name of 'Yocum Slim' and knew him to be a 'dope fiend. That's because I did time with him a couple of times for narcotics.'

The appellant contends:

(1) That section 11502, Health and Safety Code is unconstitutional;

(2) That the indictment does not state a public offense;

(3) That the evidence is insufficient to support the charge in the indictment;

(4) That the testimony of officer Renty is inherently improbable, and

(5) That it was a denial of due process not to produce Earl Jones as a witness in any stage of the proceedings.

Considering the first contention of the appellant; he insists that the statute is an improper exercise of the police power, and that the statute is vague, uncertain and unintelligible. It cannot be questioned that the police power of the state extends to matters having to do with the sale or possession of narcotics, and certainly the legislature has the power to prohibit the possession or use of narcotics, whether such drugs are beneficial or detrimental. People v. Mistriel, 110 Cal.App.2d 110, 112, 241 P.2d 1050; In re Weisberg, 215 Cal. 624, 627, 12 P.2d 446; In re Rameriz, 193 Cal. 633, 649, 226 P. 914, 34 A.L.R. 51.

Apparently, the appellant questions whether the legislature can enact such a statute under the guise of protecting the health and morals of the people, when in fact the statute prohibits a person from offering to sell a narcotic and delivering a substance in lieu of the narcotic.

The Progress Report to the Legislature, 1953 Regular Session, by the Assembly Interim Committee on Judiciary, Jan., 1953, Part XV, Final Report of Subcommittee on Narcotics, p. 254, sets forth the following:

'2. Section 11502 is added to the code and will be entirely new law. This will cover the individual who agrees to sell, furnish, transport, or give away any narcotic, and then delivers some other liquid, substance, or material. These individuals are known to be in a position to violate the law; but, for some reason, they may feel that they are dealing with a law enforcement officer and thus deliver tobacco, water, or some other substance with the result that they have had the intent to commit the crime but are testing out the officer. At the present time, nothing can be done to that person, except to charge with with (sic) 'bunco.' Under this statute it provides a penalty of not more than one year in the county jail or the state prison for 10 years.'

In any event, without the assistance of the Interim Committee Report, it is apparent that the ligislature had the intention of discouraging anyone from engaging or appearing to engage in the narcotics traffic. Anything which gives sustenance, solace, comfort or encouragement in the selling of narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the legislature. It is clear that the statute in question was aimed at discouraging any traffic in narcotics and is therefore within the police power of the state.

It has been held that except where a court can say that a police regulation has no just relation to the object which it purports to carry out, and no reasonable tendency to...