People v. Innes

Opinion

COUGHLIN, J.

Defendant, Melinda Innes, was charged in one count of an information with the offense of selling and offering to sell

“a

restricted dangerous drug, to-wit: LSD,” and in a second count with the offense of selling and offering to sell “a restricted dangerous drug, to-wit: Mescaline,” each a violation of Health and Safety Code section 11912; was tried by the court without a jury; was found “guilty on both counts”; was granted probation; and appeals.

[177]

We affirm the conviction of the offense of offering to sell Mescaline; find unmeritorious defendant’s contentions on appeal as respects that conviction; and reverse the conviction of the offense of selling Mescaline and the offense of offering to sell and selling LSD, upon the ground the evidence is insufficient to sustain these convictions.

The offense of offering to sell and selling LSD and the offense of offering to sell and selling Mescaline, although both involve restricted dangerous drugs and both are violations of Health and Safety Code section 11912, are separate offenses.

(People

v.

Seaberry,

260 Cal.App.2d 507, 510 [67 Cal.Rptr. 182]; see also

People

v.

Lockwood,

253 Cal.App. 2d 75, 82 [61 Cal.Rptr. 131].)

On August 4, 1969, Police Officer Roy Florida, acting as an undercover agent, went to an apartment complex to effect the purchase of restricted dangerous drugs from a man known to him as “Jim,” whom he previously had contacted; ascertained from an occupant Jim had moved to Colorado; and when walking out of the apartment area saw defendant in the front yard. Florida told defendant he had been working with Jim on a deal for some “reds” and asked defendant if she knew where he could get any “reds,” in response to which defendant said “she didn’t have any”; asked defendant if she had any “whites” to which she made the same response; and then asked defendant if she had any “acid,” in response to which she said she did not and pointed to another girl in the area, saying “If you want to buy some reds go to her, she’s a big dealer.” Defendant, addressing Florida, then said either “do you want some mescaline” or “do you want to buy some mescaline.” In response Florida said “yeah” and asked her “how much she could do.” He testified by this reply he meant “how much she could sell.” Defendant said “she would have to check”; went into a nearby apartment; returned in about five minutes; removed a plastic bag from under her shirt and, as related by Florida in his testimony, “She told me that she had 13 caps and I believe also she said that they normally sold for $4.00 apiece and she was going to give me a break on the price.” Also respecting this incident Florida testified when defendant returned “she said something to the effect, 1 can sell you thirteen caps’ ”; he paid defendant $50; and in return she handed him the plastic bag containing 13 red capsules. Later on the same day another officer arrested defendant for selling Mescaline. Thereafter it was ascertained the capsules did not contain Mescaline but contained LSD.