People v. Fritz

California Court of Appeal Sep 23, 1970 No. Crim. 8352Published

Before: Elkington

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Holding. The court held that a conviction for furnishing a restricted dangerous drug is valid even if the information charged the defendant with selling and furnishing in the conjunctive, and that the evidence supported the conviction despite claims of entrapment and excessive sentencing.

Issues

Whether evidence of 'furnishing' a drug is sufficient to sustain a conviction when the information charges the defendant with 'selling and furnishing' in the conjunctive.
Whether the evidence established entrapment as a matter of law.
Whether the trial court abused its discretion in sentencing the defendant to state prison.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where a statute enumerates several acts disjunctively which together or separately constitute a criminal offense, it is proper, indeed necessary, to charge the commission of more than one of such acts in the conjunctive.”

“If commission of any one of the acts is established the defendant is guilty of the crime charged.”

“It is established law that the severity of the sentence, within the statutory limits confided to the trial court, rests in its sound discretion.”

Opinion

ELKINGTON, J.

Defendant John Fritz was convicted after a trial to the court of furnishing to another a restricted dangerous drug, to wit, phenobarbital, a violation of Health and Safety Code section 11912. He appeals from the judgment thereafter entered.

Because of the contentions made by Fritz we deem it proper to reiterate rules binding on an appellate court on review of a judgment against a defendant convicted of crime. In reviewing the sufficiency of the evidence an appellate court “ ‘must assume in favor of the verdict the existence of every fact that the [trier of fact] could reasonably deduce from the evi

[526]

dence and then determine whether or not a reasonable [trier of fact] could find the defendant guilty beyond a reasonable doubt.’ ”

(People

Hall,

62 Cal.2d 104,109-110 [41 Cal.Rptr. 284, 396 P.2d 700].) The test on appeal is not whether an appellate court thinks a defendant guilty beyond a reasonable doubt, rather it is “whether there is susbtantial evidence to support the conclusion of the trier of fact.”

(People

Daugherty,

40 Cal.2d 876, 885 [256 P.2d 911]; accord:

People

v. Newland, 15 Cal.2d 678, 680 [104 P.2d 778]; Witkin, Cal. Criminal Procedure (1963) Appeal, §§ 683-685, pp. 666-669.)

Deputy Sheriff Harold Crice, acting in an undercover capacity with three others, on August 15, 1968, went to an apartment occupied by defendant Fritz, who was also known as “Blond John.” One of the other men asked Fritz if he could get some “acid” (LSD) or “pot” (marijuana). Fritz indicated that “he could have some by the next evening.” When the men returned at that time Fritz told them that he had “been unable to locate any acid or pot” for the reason that “his source had moved.” He then said that he had some “downers,” and went to a chest of drawers, removed three pills, and handed them to one of the deputy sheriff’s companions. When he was offered payment for the pills, he refused, saying, “these are on me.” The pills were phenobarbital, a barbituric acid derivative defined as a “restricted dangerous drug” by Health and Safety Code section 11901.

People v. Fritz

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ELKINGTON, J.

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