People v. Shepherd

• Decision Date: 15 February 1962
• Docket Number: Cr. 7949
• Citation: 19 Cal.Rptr. 234,200 Cal.App.2d 306
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. David P. SHEPHERD, Defendant and Appellant.

Page 234

19 Cal.Rptr. 234

200 Cal.App.2d 306

The PEOPLE of the State of California, Plaintiff and Respondent, v. David P. SHEPHERD, Defendant and Appellant.

Cr. 7949.

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

Feb. 15, 1962.

For Opinion on Rehearing, see 32 Cal.Rptr. 131.

David P. Shepherd, appellant, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant has appealed from a judgment of conviction for offering to sell marijuana.

Defendant was indicted for a violation of Section 11531, Health & Safety Code, charging that on December 22, 1960 he did 'willfully, unlawfully and feloniously sell, furnish and give away a narcotic, to wit, marijuana'. The indictment was later amended by interlineation by the addition of the words 'offer to' inserted before the word 'sell' so that the charge as amended read that he 'willfully, unlawfully and feloniously offered to sell, furnish and give away a narcotic, to wit, marijuana.' It was also amended to add a prior conviction charging that defendant had previously been convicted of the crime of rape, a felony, in the State of Michigan and that he had served a term of imprisonment therefor in the state prison. Defendant's motion under Section 995 of the Penal Code to set aside the indictment on the ground that the amendment by interlineation stated a different offense from that found by the Grand Jury was denied. Defendant entered a plea of not guilty and denied the prior conviction. Upon a trial, the jury was unable to agree on a verdict and a mistrial was accordingly declared.

On June 29, 1961 defendant was re-arraigned on the amended indictment, again plead not guilty and also denied the prior conviction. Out of the presence of the jury, defendant waived rereading of the amended indictment and admitted the prior conviction. He was found guilty by a jury as charged. His motion for new trial was denied, as was probation. Whereupon defendant was sentenced to the state prison. He has appealed.

On December 22, 1960 James T. Johnson, a police officer of the City of Los Angeles, was working as an undercover narcotic agent. At approximately 2:00 p. m. on that date the officer was approached by 'AL' while standing in front of Cooper's Doughnut Shop at 517 South Main Street. The officer had a conversation with 'AL' who then walked over to defendant and had a conversation with him. The two then returned to the officer and the defendant asked him, 'What do you want?' The officer replied, 'Can you get me half a can?' Defendant replied, 'Let me go and make a phone call', and walked away. He returned shortly and stated, 'We will have to go over on 37th Place and Vermont. Stud [the supplier] only has cans and he don't want to break them down.'

The officer and the two men then drove in the officer's car to 37th Place and Vermont. When they arrived, the defendant told the officer and 'AL' to wait in the car. He asked the officer to give him the money and said he would walk around the corner, get a can of 'weed' and bring it back. Officer Johnson inquired why he couldn't go with him. Defendant replied, 'Stud gets leery. He doesn't want me to bring anyone with me.' Defendant told Officer Johnson to pick him up as soon as he saw him walk back to the corner because he didn't want to be seen with narcotics on him. The officer then handed three five dollar bills to defendant who got out of the car and walked around the corner. The officer and 'AL' waited approximately 30 minutes in the car. They drove to the corner but the officer did not see defendant come back. Shortly thereafter the officer left.

During the month of January, 1961 Officer Johnson observed defendant four or five times. The second time, a week or ten days after the transaction of December 22, the defendant walked over to Officer Johnson who inquired of him, 'What happened to my money? Why didn't you bring my money back or the narcotics?' Defendant indicated that he had been picked up by the police and had to spend the money to get out on bail. He then said, 'I will get your narcotics for you.' The officer asked him where he lived and defendant gave him a street address. The officer expressed doubt as to the correctness of the address, whereupon defendant produced his driver's license. It was at this time he learned defendant's name. This enabled the officer also to get defendant's picture by reason of his previous conviction.

Defendant denied that he had ever seen Officer Johnson prior to some time in January of 1961. He also denied that he had been at 37th Place and Vermont with the officer or anyone else. His story of meeting Officer Johnson in January, 1961 and what there transpired differed substantially from the officer's account. He said that Johnson walked up behind him, grabbed his shoulder and asked, 'Where is my stuff?' Defendant said he did not know the officer and asked him who he was and also said to him, 'You don't know me.' It seems the officer had addressed him by some name other than his correct name. In order to support his claim that the officer did not know him, defendant produced his driver's license. Defendant denied that he ever furnished narcotics to the officer or to anyone else.

Defendant's first contention is that the evidence was insufficient to establish (1) that the crime charged in the amended indictment was committed, and (2) that it was committed by him.

The elements of the crime of offering to sell a narcotic are stated in People v. Blake, 179 Cal.App.2d 246, 3 Cal.Rptr. 749. In that case the court approved (pp. 253-254, 3 Cal.Rptr. p. 754) the following instruction to the jury: 'The crime of offering to sell a narcotic consists of two elements, namely, a specific intent to make an offer to sell a narcotic, and a direct act done toward the making of the offer. In determining such an act was done, it is necessary to distinguish between mere preparation on the one hand, and the actual commencement of the doing of the criminal deed on the other. Mere preparation which may consist of planning the offense or of devising, obtaining, or arranging the means for its commission is not sufficient to constitute this crime; but the act of offering to sell a narcotic would constitute a crime where it clearly indicates a certain unambiguous intent to make an offer to sell a narcotic, and in itself is an immediate step in the present execution of the criminal design.'

In the Blake case, supra, the defendant agreed to obtain a quantity of marijuana for a specified sum. The sale was arranged by the defendant over the telephone with an unidentified person. Defendant was to place the narcotic in the undercover agent's car and later receive the money. The transaction was never completed because of the discovery of the presence of the police. The court sustained defendant's conviction of offering to sell a narcotic. The principles enunciated in the Blake case are applicable here. The requisite element of intent could reasonably have been inferred by the jury from this testimony of the officer: that following the officer's inquiry as to whether defendant could provide him with 'half a can', defendant stated he would have to make a telephone call, left and returned shortly. He directed the officer to drive to another part of the city where he indicated he would be able to get the required quantity of narcotics from a supplier whom he referred to as 'Stud'. Upon arriving at the designated point, defendant asked the officer for the money, accepted it, left the car stating that he would go around the corner, procure the marijuana and bring it back. This testimony, which the jury accepted as true since it is implicit in their verdict, clearly indicated an intent to make an offer to sell the contraband.

Furthermore, the facts we have summarized constitute 'direct act[s] done toward the making of the offer.' (People v. Blake, supra, p. 253, 3 Cal.Rptr. p. 754), and go far beyond any mere preparation; they are 'immediate step[s] in the present execution of the criminal design.' (People v. Blake, supra, p. 254, 3 Cal.Rptr. p. 754.) It is also pointed out in the Blake case, supra, that the offer 'need not go to the extent of an actual tender or presentation or showing of the narcotics, * * *.' It is thus clear that the evidence is ample to establish that the offense was committed.

Defendant contends that he is not the person to whom Officer Johnson gave the money and from whom he sought to purchase marijuana. In effect he is arguing that the evidence was insufficient to establish the defendant as the perpetrator of the offense charged. The officer's testimony was that it was the defendant with whom he had this transaction. He was with the defendant for quite some time and had full opportunity to fix the defendant's features, voice and physical build in his mind. Prior to trial he saw the defendant several times. From this evidence the jury was amply justified in concluding that the identity of the defendant had been established. (People v. Baserto, 162 Cal.App.2d 123, 327 P.2d 558.) Implicit in the jury's verdict is the fact that the testimony of the officer was believed. The uncorroborated testimony of the officer is sufficient to sustain the implied finding as to defendant's identity. (Code Civ.Proc. § 1844; People v. McCrasky, 149 Cal.App.2d 630, 635, 309 P.2d 115; People v. Smith, 174 Cal.App.2d 129, 134, 334 P.2d 435.)

Defendant also contends that his guilt was not established beyond a reasonable doubt. This contention is answered in People v. Casado, 181 Cal.App.2d 4, 4 Cal.Rptr. 851. At page 8, 4 Cal.Rptr. at page 853 the court stated: 'It is the trier of fact who must be persuaded beyond a reasonable doubt of the guilt of the defendant. The function of the reviewing court is to determine whether the evidence, if believed, is of sufficient character to justify...