People v. Moreno

KINGSLEY, J.-

— Defendant was charged with the sale of heroin, in violation of section 11501 of the Health and Safety Code. Jury was waived and, after a trial to the court, he was found guilty as charged. He was duly committed to the Narcotics Rehabilitation Center but, after several months in that institution, he was returned as unfit.

1

The criminal proceedings were resumed, probation was denied and he was sentenced to state prison with a notation (pursuant to Pen. Code § 6520) that he receive credit for the time spent in the Rehabilitation Center. He has appealed from the judgment.

Agent Cota, of the State Narcotic Bureau, had received information that defendant was dealing in narcotics and that an addict named Gonzales could and would introduce the agent to defendant. At Cota’s request, Gonzales phoned defendant, saying: “Chava [defendant’s nickname] we want to make it for a quarter.”

2

An appointment was then made and, pursuant to that arrangement, Cota and- Gonzales met defendant on the street near defendant’s home. Cota and Gonzales were seated in a parked automobile. Defendant approached, entered the car, and was introduced to Cota. At this point, another individual approached the car, addressed defendant and said: “Anything doing?” or “Have you got anything?” Defendant

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replied: “No, I am going to make it now.” Cota, Gonzales and defendant then drove to a location in Bast Los Angeles where defendant, after asking for and receiving $65 from Cota, left the car. He returned soon thereafter with a rubber condom containing a white powder (later found to be heroin). During the drive, Cota and defendant had discussed the quality of the narcotic to be purchased. Defendant’s testimony, in effect, admitted the facts as above stated.

I

Defendant’s sole defense at the trial, and his chief point here, is a claim of entrapment. However, although admittedly this particular transaction was originated in a phone call from the agent’s informer to defendant, the facts show only a typical sale by a seller ready, able and willing to deal. It may well be true, as defendant contends, that he engaged in sale only because the money received from Cota was enough to enable him to purchase a quantity of heroin sufficient to complete his bargain with Cota and still retain some for his own use. But this motivation would be equally present in the ease of any offer to buy, by any prospective purchaser. None of the elements of entrapment, as that defense exists in our law, were here present. (See the discussion in 1 Witkin, Cal. Crimes (1963) § 176, pp. 168-169.) In fact, the conversation with the person who approached the car, and the nature of the discussion as to quality engaged in by defendant with Cota, clearly suggest that defendant was an experienced dealer in narcotics.