People v. Sweet

• Decision Date: 19 December 1967
• Docket Number: Cr. 12284
• Citation: People v. Sweet, 257 Cal.App.2d 167, 65 Cal.Rptr. 31 (Cal. App. 1967)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry SWEET, Defendant and Appellant.

Page 31

65 Cal.Rptr. 31

257 Cal.App.2d 167

The PEOPLE of the State of California, Plaintiff and Respondent, v.Henry SWEET, Defendant and Appellant.

Cr. 12284.

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

Dec. 19, 1967.

Hearing Denied Feb. 14, 1968.

Alfred V. Contarino, San Jose, by appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer, Richard L. Hamilton, Deputy Attys.Gen., for respondent.

FLEMING, Associate Justice.

Henry Sweet was convicted of four violations of Health & Safety Code, § 11501(the sale, furnishing, or gift of narcotics); two violations of § 11531(the sale, furnishing, or gift of marijuana); and one violation of § 11503(the sale, furnishing, or gift of a non-narcotic sustance after an agreement to sell, furnish, or give away a narcotic).Sweet appeals the judgment, claiming entrapment.

On 9 June 1965 Miss Barbara Etis, a narcotics addict with whom Sweet was acquainted, and a companion came to Sweet's apartment and asked Sweet if he knew where they could buy heroin.Sweet volunteered to go with them to Fifth Street and cop for them in buying heroin.Unknown to Sweet, Miss Etis was a police contact, and her companion was Bernard Parks, an undercover officer in the Narcotic Division, Los Angeles Police Department.

On that occasion, and also on 11 June, 16 June, and 9 July, Sweet directed Officer Parks to various locations at which either Sweet bought narcotics with money given him by Parks and delivered narcotics to Parks and Miss Etis, or Parks bought directly from a seller to whom he was introduced by Sweet.

On 13 July and on 16 July Parks appeared in Sweet's apartment with another informant and asked Sweet to help him buy marijuana.Sweet did so.In all respects these incidents were similar to the heroin purchases.

On 10 June 1965, Parks and Miss Etis went to Sweet's apartment.Miss Etis said 'she was sick and she needed some stuff (heroin).'Parks suggested the seller from whom Sweet had bought the previous day.Sweet said it was too early in the day to tap that source and suggested they try another location.There, Sweet asked an acquaintance if he knew where narcotics were available.The acquaintance got into the car, directed Parks to an address, obtained money from Parks, left the car, and returned with a balloon containing a powder which later proved to be a non-narcotic substance.

Nothing in the record indicates that Sweet profited from any of these transactions.Sweet waived trial by jury and did not testify.

A person who at the instigation of the police commits a crime he would not otherwise have committed, is said to have been entrapped and may not be punished for that crime.The test for entrapment in California is commonly called the origin-of-intent test.If the person who claims to have been entrapped can establish that the police generated in his mind 'the original intent to commit criminal acts which (he) would not have committed * * * but for such inducement'(In re Moore, 70 Cal.App. 483, 488, 233 P. 805, 807), his defense is good.If, however, the acts of the police merely furnish an occasion on which the defendant chooses to act on a 'pre-existing criminal intent', then the defense of entrapment fails (People v. Benford, 53 Cal.2d 1, 10, 345 P.2d 928.)On appeal, a trial court's finding of non-entrapment will be upheld if the record contains substantial evidence to support the finding.(People v. Terry, 44 Cal.2d 371, 372--373, 282 P.2d 19.)

The record in this case contains sufficient evidence to support an inference of pre-existing criminal intent.Sweet readily and without reluctance accepted the proposals of Parks and Miss Etis, and on 9 June he volunteered to cop for them before he had been asked to do so.The conduct of the police was not tainted by persuasion, deceit, coercion, or unusual enticements.(People v. Estrada, 211 Cal.App.2d 722, 727, 27 Cal.Rptr. 605.)Therefore, it was a justifiable inference that Sweet, given a suitable occasion, was ready and willing to commit the offenses.

Sweet argues he acted out of friendship for Miss Etis and with knowledge of her need as an addict for narcotics and was therefore entrapped by an appeal to his sympathy.Yet on only one occasion did Miss Etis suggest that she had a physical need for narcotics, and that suggestion was by use of the ambiguous word sick.The mere fact that a police officer ingratiates himself with a suspect and then asks him to commit an offense does not in itself establish entrapment.(See, e.g.People v. Benford, 53 Cal.2d 1, 345 P.2d 928;People v. Cordero, 240 Cal.App.2d 826, 49 Cal.Rptr. 924.)Nor does use by the police of a friend of the suspect to gain the latter's confidence establish entrapment.(People v. Hunter, 218 Cal.App.2d 385, 33 Cal.Rptr. 15.)In the absence of any testimony by Sweet that he was motivated solely by sympathy for Miss Etis, the argument is purely speculative.

The occasion on which Miss Etis said she was sick culminated in the sale of a non-narcotic powder falsely represented to be heroin.Section 11503 Health and Safety Code, reads:

'Every person who agrees, consents, or in any manner offers to unlawfully sell * * * or give any narcotic to any person, or offers, arranges, or negotiates to have any narcotic unlawfully sold, delivered, * * * or given to any person and then sells, delivers * * * or offers, arranges, or negotiates to have sold, delivered * * * or given to any person any other liquid, substance, or material in lieu of any narcotic shall be punished * * *.'

The offense prohibited by this section is not committed unless a non-narcotic is sold, delivered, etc. 'in lieu of' a narcotic.These words imply a substitution by the accused of the non-narcotic for the promised narcotic.Substitution implies conscious replacing of one thing with another.Specific intent to commit this offense must be proved.(People v. Contreras, 226 Cal.App.2d 700, 702, 38 Cal.Rptr. 338;People v. Lopez, 213 Cal.App.2d 668, 673--675, 28 Cal.Rptr. 912.Contra, People v. Dalton, 172 Cal.App.2d 15, 21, 341 P.2d 793.Cf.People v. Hicks, 222 Cal.App.2d 265, 271--272, 35 Cal.Rptr. 149.)

Sweet took no direct part in the sale; rather, he acted as the finder of an apparent intermediary who negotiated the sale.The circumstances of Sweet's finding do not suggest he was acting in concert with the seller in the supplying of the non-narcotic.There was no evidence that Sweet knew of the substitution, and no evidence from which knowledge of the fraud could reasonably be imputed to him, and therefore no evidence of his specific intent to commit the particular offense with which he was charged.Nor under the specific facts of this count was the fraudulent intent of the seller reasonably attributable to Sweet in order to make him an aider and abettor.(Pen.Code, § 31.)'There must be proof that the accused not only aided the actor but at the same time shared the criminal intent.'(People v. Butts, 236 Cal.App.2d 817, 836, 46 Cal.Rptr. 362, 374.)While Sweet may have intended to commit a crime on 10 June, his intent was neither to bring about the specific events which took place that day nor to commit the specific crime of which he was accused.Other possible offenses of which he may have been guilty on that occasion, such as conspiracy to sell narcotics, or offer to sell narcotics, or attempt to sell narcotics, were not charged against him.(Cf.People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 357 P.2d 1072.)

The judgment is reversed on Count IX and affirmed on all other counts.

ROTH, P.J., concurs.

CONCURRING AND DISSENTING OPINION

HERNDON, Associate Justice.

I concur in the portion of the opinion which affirms the convictions but I dissent from the reversal as to count IX because of the desirability of maintaining uniformity of decision in the construction and application of a penal statute which is an important part of the legislative plan in the control of traffic in dangerous drugs.

The Sole assignment of error urged by appellant on this appeal is the contention that the evidence indicates as a matter of law that he was entrapped into committing the offenses of which he was convicted.By definition, this contention necessarily is founded upon the concession that appellant intentionally committed the proscribed acts or, at least, that he does not challenge the sufficiency of the evidence to establish such criminal conduct.That is to say, this assignment of error urges that the accused was 'induced' or 'lured' into The commission of a crime which he otherwise would not have committed and therefore he should escape punishment, not because his conduct did not constitute a criminal offense, but because, by reason of the conduct of its agents, 'the government is estopped by sound public policy from prosecuting therefor.'(People v. Sweeney, 55 Cal.2d 27, 48, 9 Cal.Rptr. 793, 805, 357 P.2d 1049, 1061.)

Sua sponte the majority have advanced the proposition that the conviction as to count IX must be reversed because of the absence of proof that appellant knew of the 'substitution' of a non-narcotic substance for the narcotic which the purchaser had been promised and the lack of evidence that appellant entertained the specific intent to defraud the purchaser.

Unquestionably the evidence is sufficient to support the finding of the trial court that appellant so actively participated in the transaction involved in count IX that he aided and abetted the commission of the criminal acts proscribed by section 11503.He was a principal in a transaction wherein he knowingly and intentionally assisted in making the arrangements leading to an agreement to sell and deliver a narcotic which was followed by the delivery of a non-narcotic substance.Appellant makes no contention to the contrary.

The majority opinion states: 'There was no evidence that Sweet knew of the substitution, and no evidence from which knowledge of...